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CASE 



THE BLACK WARRIOR, 



AKD OTHER 



VIOLATIONS OF THE RIGHTS OF AMERICAN CITIZENS 



SPANISH AUTHORITIES 







WASHINGTON: 

BEVERLEY TUCKER, SENATE PRINTER. 

1854. 



d'7£ 



IN SENATE OF THE UNITED STATES. 

MONDAY, JUNE 36, 1854. 



Resolved? That two thousand copies of House Document No. 86, relating to the seizure of 
the steamer Black Warrior, and other cases of alleged wrongs to American citizens, by the 
authorities of Cuba, be printed for the use of the Senate. 

Attest? ASBURY DICKINS, Secretary. 



J* 



MESSAGE 

FROM 

THE PRESIDENT OF THE UNITED STATES, 

TRANSMITTING 

A report in regard to Spanish violations of the rights of American citizens, Sfc. 



To the House of Representatives of the United States: 

I transmit herewith to the House of Representatives a report of the 
Secretary of State, with accompanying documents, in further compli- 
ance with their resolution of the 10th March, 1854. 

FRANKLIN PIERCE. 

Washington, April 5, 1854. 



Department of State, 

Washington, April 4, 1854. 

The Secretary of State, to whom was referred the resolution of the 
House of Representatives of the 10th ultimo, requesting the President, 
*' if not inconsistent with the public interest, to communicate to this 
House any information he may have received relative to the detention 
of the steamer Black Warrior, the seizure of her cargo, or the imprison- 
ment of her officers ; also any information in reference to any other 
violation of our rights by the Spanish authorities," has now the honor, 
in addition to the papers communicated on the 15th ultimo, relative to 
the case of the Black Warrior, to lay before the President a copy of 
the documents specified in the accompanying list, in respect to other 
complaints against the Spanish authorities, which, with the documents 
previously communicated to Congress, also referred to in the said list, 
are believed to embrace all important papers connected with the cases. 

Papers in reference to other cases of like complaint are in the course 
of preparation, and will be laid before the President as soon as they 
are completed. 

Respectfully submitted : 

W. L. MARCY. 

To the President of the United States. 



CASE OF THE BLACK WARRIOR, ETC 



LIST OP DOCUMENTS ACCOMPANYING THE REPORT OP THE SECRETARY OP STATE TO THE PRESI- 
DENT, OP THE 4TH OF APRIL, 1854. 

Case of the Crescent City. 

Mr. Morland to Mr. Webster, enclosures, September 23, 1852. 

Mr. Roberts to the Secretary of State, October 6, 1852. 

Mr. Moreland to the same, enclosures, October 7, 1852. 

Mr. Conrad to Mr. Roberts, October 8, 1852. 

Same to Mr. Sharkey, October 11, 1852. 

Mr. Sharkey to Mr. Conrad, extract, October 11, 1852. 

Mr. Morland to Mr. Webster, enclosures, October 18, 1852. 

Same to the Secretary of State, October 20, 1852. 

Mr. Roberts to the Acting Secretary of State, enclosure, October 21, 
1852. 

Mr. Law to the same, October 23, 1852. 

Mr. Conrad to Mr. Law, October 25, 1852. 

Mr. Law to Mr. Conrad, October 27, 1852. 

Mr. Morland to same, extract, October 27, 1852. 

Mr. Conrad to Mr. Barringer, enclosure, October 28, 1852. 

Mr. Morland to Mr. Conrad, October 29, 1852. 

Mr. Conrad to Mr. Law, October 30, 1852. 

Mr. Calderon to Mr. Conrad, enclosure, November 5, 1852. 

Mr. Sharkey to the Secretary of State, extracts and enclosures, No- 
vember 8, 1852. 

Mr. Everett to Mr. Maxwell, November 33, 1852. 

Same to Mr. Calderon, November 15, 1852. 

Mr. Kennedy to Mr. Everett, enclosures, November 16, 1852. 

Mr Sharkey to Mr. Everett, enclosure, November 17, 1852. 

Mr. Calderon to same, November 17, 1852. 

Mr. Sharkey to the Secretary of State, November 17, 1852. 

Mr. Everett to Mr. Sharkey, November 30, 1852. 

Mr. Sharkey to Mr. Everett, extract, December 1, 1852. 

Mr. Everett to Mr. Barringer, enclosure, December 4, 1852. 

Mr. Calderon to Mr. Everett, December 10, 1852. 

Mr. Barringer to same, enclosures, December 14, 1852. 

Mr. Roberts to same, enclosure, December 14, 1852. 

Mr. Everett to Mr. Sharkey, December 30, 1852. 

Mr. Roberts to Mr. Everett, enclosure, January 4, 1852. 

Mr. Barringer to the Secretary of State, extract and enclosures, Jan- 
uary 5, 1853. 

Mr. Everett to Mr. Barringer, February 4, 1853. ,- 

Mr. Barringer to Mr. Marcy, April 7, 385/. fc> #>-?-/$". 

Cases of the steamer Ohio and Schooner Manchester. 

Mr. Marcy to Mr. Barringer, enclosures, April 19, 1853. 
Mr. Barringer to Mr. Marcy, extract, June 10, 1853. 
Same to same, extract and enclosures, July 8, 1853. 
Same to same, extract and enclosures, July 16, 1853. 



CASE OF THE BLACK WARRIOR, ETC 5 

Same to same, extract and enclosures, August 18, 1853. 

Mr. Soule to same, extract and enclosures, March 8, 1854. JS-r/Qf 

Case of John S. Thrasher. 

Mr. Webster to Mr, Sharkey, extract, January 9, 1852. 
Mr. Barringer to Mr. Webster, extract and enclosures, January 14, 
1852. 

Same to same, enclosure, January 15, 1852. 

Mr. Sharkey to same, extract and enclosure, February 9, 1852. 

Same to same, enclosure, February 13, 1852. 

Mr. Graham to same, February 21, 1852. 

Mr. Thrasher to same, March 22, 1852. 

Mr. Webster to Mr. Sharkey, July 5, 1852. 

Mr. Everett to Mr. Brooks, January 8, 1853. 

Mr. Hayes to the Secretary of State, enclosure, March 10, 1853. 

Mr. Marcy to Mr. Hayes, March L2, 1853. 

Same to Mr. Lawrence, April 12, 1853. 

Case of the steamer Falcon. 

Mr. Owen to Mr. Webster, enclosure, August 17, 1851. 
Mr. Derrick to Mr. Calderon, September 13, 1851. 
Mr. Calderon to Mr. Derrick, September 29, 1851. 

Case of the schooner Lamartine. 

Mr. Worrell to Mr. Marcy, enclosures, February 25, 1854. 
Same to same, enclosure, March 4, 1854. 
Same to same, enclosure, March 9, 1854. 

Case ofRey, alias Garcia,. 
Mr. Barringer to Mr. Clayton, extract, January 9, 1850. 

Case of Pedro Raices. 

Mr. Robertson to Mr. Marcy, extract, November 7, 1853. 

Same to same, December 1, 1853. 

Same to same, enclosures, January 11, 1854. 

Mr. Marcy to Mr. Robertson, February 9, 1854. 

Mr. Robertson to Mr. Marcy, extract, February 20, 1854. 

Same to same, extract, March 5, 1854- 

Mr. Marcy to Mr. Magallon, March 15, 1854. 

Mr. Magallon to Mr. Marcy, March 18, 1854. 

Mr. Robertson to Mr. Marcy, extract, March 21, 1854. 

Case of Charles Peter V. Esnard. 
Mr. Campbell to Mr. Clayton, enclosures, February 1, 1850. 

Case of John Salinero. 
Mr. Morland to Mr. Webster, enclosures, April 7, 1851. 



O CASE OF THE BLACK WARRIOR, ETC 

Case of Captain Larrabee — Delays in judicial proceedings in Cuba. (Re- 
port on tribunals annexed.) 

Mr. Trist to Mr. Forsyth, extracts and enclosures, Sept. 29, 1853. 
Mr. Robertson to Mr. Marcy, March 9, 1854. 

Case of the annulling of the Cuban Decree of October 7, 1844. 

Mr Buchanan to Mr. Irving, enclosures, May 9, 1845. 
Mr. Irving to Mr. Buchanan, extract, June 25, 1845. 
Same to same, extract, July 10, 1845. 
Mr. Barringer to Mr. Marcy, extract, August 11, 1853. 

Case of Michael D. Haraug. 

Mr. Gallaher to Mr. Forsyth, extract and enclosure, March 2, 1839. 

Mr. Forsyth to the Chevalier d'Argaiz, February 28, 1840. 

The Chevalier d'Argaiz to Mr. Forsyth, March 2, 1840. 

Mr. Forsyth to Mr. Gallaher, March 4, 1840. 

Mr. Gallaher to Mr. Forsyth, extract and enclosures, April 11, 1840. 

The Chevalier d'Argaiz to same, December 24, 1840. 

Mr. Vail to Mr. Webster, extract and enclosure, May 2, 1841. 

Same to same, extract, July 24, 1841. 

Mr. Webster to Mr. Vail, extract, September 1, 1841. 

Mr. Vail to Mr. Webster, November 2, 1841. 

Mr. Webster to Mr. Vail, extract, January 31, 1842. 

Mr. Webster to Mr. Irving, extract, July 30, 1842. 

Mr. Irving to Mr. Webster, enclosure, October 8, 1842. 

Same to same, extract and enclosure, November 5, 1842. 

Mr. Calhoun to Mr. Irving, April 30, 1844. 

Same to same, extract, May 29, 1844. 

Mr. Irving to Mr. Calhoun, extract, June 24, 1844. 

Same to same, extract, July 14, 1844. 

Same to Mr. Buchanan, extract and enclosures, August 23, 1845. 

Mr. Buchanan to Mr. Saunders, extract, December 6, 1847. 

Mr. Saunders to Mr. Buchanan, enclosure, February 8, 1848. 

Same to Mr. Clayton, extract, July 7, 1849. 

Same to same, extract and enclosures, September 25, 1849. 

Mr. Barringer to Mr. Webster, November 8, 1852. 

Same to the Secretary of State, enclosures, February 23, 1853. 

Same to same, extract and enclosure, March 8, 1853. 

Same to same, enclosures, March 26, 1853. 

Mr. Gallaher to Mr. Forsyth, November 23, 1838. 

Case of the seamen belonging to the barque Jasper. 

Mr. Robertson to Mr. Marcy, enclosures, July 6, 1853. 

Same to same, enclosure, July 11, 1853. 

Same to same, July 13, 1853. 

Commander J. F. Gerry, U. S. N., to Mr. Dobbin, July 15, 1853. 

Mr. Marcy to M T . O'Conor, enclosure, July 19, 1853. 



CASE OF THE BLACK WARRIOR, ETC. 7 

Same to Mr. Robertson, July 20, 1853. 

Mr. Robertson to Mr. Marcy, enclosure, July 21, 1853, 

Same to same, enclosures, July 21, 1853. 

Mr. Cowperthwaite to same, July 21, 1853. 

Mr. Marcy to Mr. Dobbin, July 22, 1853. 

Mr. Dobbin to Mr. Marcy, July 25, 1853. 

Same to same, enclosure, July 28, 1853. 

Mr. Robertson to same, extract and enclosure, July 28, 1853. 

Mr. O' Conor to Mr. Marcy, July 29, 1853. 

Mr. Mann to Mr. O' Conor, August 2, 1853. 

Mr. Robertson to Mr. Marcy, extract and enclosure, August 3, 1853. 

Mr. Mann to Mr. Robertson, extract, August 3, 3853. 

Mr. Robertson to Mr. Marcy, extract, August 29, 1853. 

Same to same, enclosure, September 24, 1853. 

Same to same, extract, October 20, 1853. 

Same to same, enclosure, October 26, 1853. 

Same to same, extract, October 28, 1853. 

Mr. Cowperthwaite to same, November -3, 1853. 

Mr. Graff to same, November 5, 1853. 

Mr. Robertson to same, November 7, 1853. 

Mr. Marcy to Mr. Clayton, November 8, 1853. 

Same to Mr. Cowperthwaite, November 10, 1853. 

Mr. Robertson to Mr. Marcy, enclosures, November 14, 1853. 

Mr. Marcy to Mr. O'Conor, November 16, 1853. 

Mr. Clayton to Mr. Marcy, extract, December 5, 1853. 

Mr. Robertson to Mr. Marcy, enclosure, December 21, 1853. 

Mr. Robertson to same, enclosures, January 5, 1854. 

Same to same, enclosure, January 12, 1854. 

Mr. Robertson's certificate, January 16, 1854. 

Mr. Marcy to Mr. Robertson, extract, January 18, 1854. 

Mr. Robertson to Mr. Marcy, extract, January 21, 1854. 

Mr. Marcy to Mr. Florence, February 3, 1854. 

Mr. Robertson to Mr. Marcy, extract, February 7, 1854. 

■Same to same, enclosure, February 14, 1854. 

Same to same, enclosure, February 20, 1854. 

Mr. Marcy to Mr. Cowperthwaite, February 27, 1854. 

Mr. Robertson to Mr. Marcy, February 27, 1854. 

Same to same, enclosures, February 28, 1854. 

Mr. Wheeler to Mr. Marcy, February 28, 1854. 

Mr. Robertson to Mr. Marcy, extract and enclosure, March 5, 1854. 

Mr. Marcy to Mr. Robertson, extract, March 7, 1854.^^^- £i>? 



Case of the Black Warrior. 

Mr. Robertson to Mr. Marcy, enclosure, March 14, 1854. 
Same to same, extract and enclosure, March 21, 1854. 
Mr. Sutherland to same, enclosures, March 28, 1854- 

Opening of the mails of the United States by the authorities of Cuba. 

Mr. Sharkey to Secretary of State, extract, November 8, 1852. 



8 CASE OF THE BLACK WARRIOR, ETC 

Same to Mr. Everett, enclosure, February 21, 1853. 

Same to Secretary of State, extract and enclosure, March 12, 1853. 

Mr. Robertson to Mr. Marcy, August 29, 1853. 

Same to same, enclosure, August 29, 1853. 

Same to same, extract, September 13, 1853. 

Same to same, extract, October 14, 1853. a^/*-*?^ 

Mr. Marcy to Mr. Pierce, February 1, 1854. «^ 

Case of the Contoy prisoners. 

Mr. Campbell to Mr. Clayton, extract and enclosures, May 19, 1850. 

Same to same, extracts and enclosures, May 22, 1850. 

Same to same, enclosures, May 31, 1850. 

Same to same, May 31, 1850. 

Mr. Clayton to Mr. Campbell, May 31, 1850. 

Same to same, June 1, 1854. 

Mr. Campbell to Mr. Clayton, June 4, 1850. 

Same to same, June 8, 1850. 

Same to same, enclosure, June 19, 1850. 

Same to same, extracts, June 19, 1850. 

Same to same, extract, June 27, 1850. 

Mr. Clayton to Commodore Morris, June 29, 1850. 

Same to Mr. Campbell, June 29, 1850. 

Mr. Campbell to Mr. Clayton, extracts, July 3, 1850. 

Same to same, July 8, 1850. 

Same to same, enclosure, July 12, 1850. 

Same to same, July 16, 1850. 

Same to same, extract, July 19, 1850. 

Commodore Morris to same, enclosures, July 23, 1850. 

Note. 

For previous correspondence relating to the case of John S. Thrasher, 
see House Ex. Docs. Nos. 10 and 14, 32d Congress, 1st session. 

For previous correspondence in the case of Rey, alias Garcia, see 
Senate Ex. Doc. No. 13, 31st Congress, 1st session. 

For previous correspondence in the case of the Black Warrior, see 
House Ex. Doc. No. 76, 33d Congress, 1st session. 

For previous correspondence in the case of the Contoy prisoners, see 
Senate Ex. Doc. No. 41, 31st Congress, 2d session. 

For correspondence in reference to the seizure and imprisonment of 
Captain Thaddeus Beecher, and his officers and crew, of the schooner 
North Carolina, see House Ex. Doc. No. 29, 33d Congress, 1st ses- 
sion- 

For correspondence relating to the imprisonment of James H. Weston, 
see Senate Ex. Doc. No. 46, 33d Congress, 1st. session. 



CASE OF THE BLACK WARRIOR, ETC 9 

CASE OF THE CRESCENT CITY. 
Mr. Morland to Mr. Webster. 

[No. 13.] Consulate of the United States, Havana, 

September 23, 1852. 

Sir : Since my last communication, (No. 12,) under date of the 25th 
ultimo, the only circumstance that has occurred which renders it proper 
to communicate to you, is the steps threatened to be taken by the Cap- 
tain General towards the mail steamships that come to this port, an- 
nounced to me only on the 21st instant, although he had issued his or- 
ders on the 4th, and the " Crescent City" had come in and departed in 
the interim. 

I enclose herewith a copy of the Captain General's communication, 
(containing the Political Secretary's letter to the consignees of that 
ship,) and my answer thereto, by which you will see that he is deter- 
mined to refuse entry to any ship with any person on board who 
may have written " calumnious" charges against his government. Such 
a proceeding may cause very serious injuries to the commerce of the 
United States connected with this place, and interrupt the course of 
the mail. 

1 take this opportunity of stating that in the only two cases wherein 
I have deemed it my duty to appeal to the Captain General in behalf 
of American citizens who have been arrested and imprisoned for vio- 
lating the regulations of the port, &c, he has evinced a disposition to 
be just and conciliatory ; and finally both were released, and one fine 
was remitted. 

I have the honor to remain, with great respect, your obedient serv't, 

JNO. MORLAND, Acting Consul. 

Hon. Danl. Webster, 

Secretary of State. 



[l. s.] Political Secretary's Office, Section 1. 

Havana, September 21, 1852. 

The Secretary of this Superior Civil Government has, on the 4th 
instant, communicated, by my order, to the firm of Drake & Co., mer- 
chants of this city, what follows : 

" A person named William Smith, who seems to be an employe on 
the steamer 'Crescent City,' has published, on the arrival of said 
steamer, her last voyage, at New York, the grossest calumnies against 
the government of this island, taking advantage, to give a greater ap- 
pearance of truth to his impostures, of the frank hospitality extended to 
foreigners in Cuba. 

" This act, which the whole world will know how to judge and qualS- 
ify with its true colors, has very seriously called the attention of his 
excellency the Governor and Captain General, which superior authority, 
although he despises the ridiculous assertions made against his admin- 
istration, to occupy himself even for a single moment in refuting them, 
deems it a duty to let the author understand that her Majesty's gov- 



10 CASE OF THE BLACK WARRIOR, ETC 

ernment will not permit that acts of that nature shall be reproduced 
with impunity. 

" In virtue whereof, proper orders have been issued, that immediately 
that the steamer ' Crescent City' arrive at this city, a police officer shall 
go on board for the express purpose of preventing said Smith from 
coming on shore. And by order of his excellency I state it to you ; 
adding, that if in future said individual should return in any of the 
steamers of the company, or any other person employed on them 
should take the liberty to abuse in a similar manner the privileges that 
the Spanish authorities offer him in the ports of the island, this sole act 
will be sufficient not to allow entry to the vessel conveying him, what- 
soever the losses may be that such a measure may accrue to the com- 
pany ; for although the company have it not in their power to prevent 
their subordinates from committing such excesses, their honor and inte- 
rest must oblige them to immediately withdraw their trust from any one 
that should attempt to compromit them foolishly." 

Which I transmit to your lordship for your information and proper 
effects, in case that it should be attempted to oppose the orders of this 
superior government, which I am firmly resolved to carry into effect. 

God preserve your lordship many years. 

VALENTIN CAREDO. 

To the Consul of the United States in this city. 



Consulate of the United States, Havana, 

September 22, 1852. 
Most Excellent Sir : I had the honor to receive your excellency's 
official communication of yesterday, containing a copy of a communi- 
cation from the secretary of the superior Civil Government addressed 
to the mercantile house of Drake & Co., by your excellency's order, on 
the 4th instant, on the subject of some gross calumnies on your excel- 
lency's conduct published in the United States by William Smith, an 
officer or employe on board the United States mail steamer " Crescent 
City." The secretary says, " that although your excellency despises 
such ridiculous falsehoods, you still deem it a duty to make it known to 
their author that her Majesty's government will not permit things of 
this nature to be reproduced with impunity," and that your excellency 
" has issued orders that immediately the said steamer ' Crescent City' 
shall arrive in this city, a police officer will be sent on board with an 
express order to prevent the landing of the said Smith ;" and that " in 
future, if this individual shall return, or any other person employed in 
the steamers belonging to the company shall take the liberty to abuse 
in a similar manner the privileges extended to them by the Spanish 
authorities in the ports of Cuba, this sole fact will be sufficient for the 
vessel conveying such person to be refused an entry, whatsoever may 
be the losses that may accrue to the company ; as, although it is not in 
their power to prevent their subordinates from committing such ex- 
cesses, their honor and interest ought to oblige them to withdraw im- 
mediately their trust from any one who may attempt to compromit 
them foolishly." And your excellency advises me that " you are firmly 



CASE OP THE BLACK WARRIOR, ETC 11 

resolved to carry into effect, in case any opposition should be attempt- 
ed, the order of the superior government." 

As the secretary's communication to Drake & Co., was made under 
date of the 4th instant, seventeen days since, they state that they have 
advised the owners of the steamers of the import thereof for their gov- 
ernment. And as your excellency now states to me your firm inten- 
tion to carry into effect the determination your excellency has come to 
in this matter, it remains for me merely to communicate the same to 
my government. I cannot, however, refrain from expressing my deep 
regret that anything should have occurred to induce your excellency to 
take such a step, particularly as it will involve other persons entirely 
innocent of such offences in much loss and difficulty. And besides, as 
the steamships "Crescent City" and "Empire City" are the bearers 
of the United States mail, any interruption, caused by your excel- 
lency's government, in the progress of their duties, will result in much 
harm, and be anything but conciliatory with the federal government of 
the United States. 

I have the honor to be, respectfully, your excellency's, &c, 

JOHN MORELAND, Acting Consul. 

His Excellency Sefior D. Valentin CaNedo, 

Governor and Captain General, 8fc. 



Mr. Roberts to the Secretary of State. 

Office of the U. S. Mail Steamship Company, 

New York, October 6, 1852. 

Sir : I have the honor to state to you, that we learn by telegraph 
from New Orleans, this afternoon, that the U. S. mail steamship 
" Crescent City," Captain Porter, United States navy, on her arrival 
at Havana from this port, whence she sailed on the 27th ultimo, with 
mails, passengers, and freight, was not permitted to enter that port, or 
was ordered out of the harbor forthwith. She was, accordingly, com- 
pelled to proceed, with her mails, passengers, and freight, to New 
Orleans. 

This is not the first instance in which the ships of this company, and 
the American flag, have been subjected to injury and insult by the 
Cuban authorities. The "Ohio," commanded by an officer of the 
United States navy, and conveying the government mails, was ordered, 
without cause or provocation, and against the protest of her com- 
mander, to an unsafe and hazardous anchorage, under the guns of 
the Moro Castle, or forthwith to leave the harbor, without being al- 
lowed to deliver her mails or freight, or to obtain her usual supply of 
coals. The " Falcon," also, commanded by an American naval officer, 
was fired upon and boarded on the high seas, by a Spanish vessel of 
war. The " Philadelphia," also bearing the United States mails, en- 
tered the port of Havana, (her usual place of coaling and obtaining 
supplies,) in distress, destitute of coal and provisions, and with many of 
her passengers sick. After being ordered to quarantine and having 
proceeded thither, she was ordered several miles outside, and then per- 



12 CASE OP THE BLACK WARRIOR, ETC 

emptorily driven from her anchorage, without being allowed to receive 
on board her coals and provisions, then alongside, for the want of which 
her passengers and crew were suffering, and was compelled to go to 
sea, to the imminent danger of the safety of the steamer and mails, and 
with fatal consequences to many of the persons on board. And this 
systematic course of insult and outrage has been followed up, by driv- 
ing the "Crescent City," in the service of the government of the United 
States, and commanded by an American naval officer, from the harbor 
of Havana, without being allowed to deliver her mails, to land her pas- 
sengers or freight, destined for that port, or to obtain her supply of coals. 

The conduct of the Cuban authorities in these repeated and wanton 
acts of hostility, not only causes a serious interruption to the due de- 
livery of the mails, but is a great detriment and loss to this company, 
in disturbing its business and its contract arrangements with the gov- 
ernment ; a serious annoyance and injury to American citizens, passen- 
gers, and shippers, and to the trade and commerce between the two 
countries ; and is calculated, if not designed, to disturb the amicable 
relations heretofore existing between the two governments. More than 
this, we cannot but regard it as a gross insult to the American flag, 
derogatory to our national character, and in violation of our national 
rights. 

The pretext on which this last outrage has been perpetrated, is the 
allegation that the purser of the "Crescent City" made a publication in 
an American newspaper, of some of the statements of which the Cuban 
authorities complain. The allegation is unfounded ; but, if it were 
true, we know of no right on the part of a foreign government to dictate 
to an American citizen, in his own country, what he shall utter or ab- 
stain from uttering, through the journals of his own country. 

It has ever been the aim of this company to avoid the semblance of 
anything that could give offence to the Spanish authorities of the island 
of Cuba. Its commanders, and all persons in its employment, have 
been uniformly instructed to abstain from all interference in the affairs 
of that government, and I have no reason to think that these instruc- 
tions have not been fully complied with. 

We have forborne to call the attention of our government to the in- 
sults by the Cuban officials to which the ships of this company and the 
American flag have been heretofore subjected, from a desire to avoid 
everything that might lead to irritation between the two governments, 
and from a belief, that a knowledge of the unfounded nature of the alle- 
gations on which they pretended to act would prevent their repetition. 
But we feel it due, not less to the public interests confided to our charge, 
than to our own interests and the interests of American citizens engaged 
in a peaceful and lawful commerce, to bring these facts to the consid- 
eration of the American government ; and to ask, as American citizens 
in the service of the government, and required by it to deliver its mails, 
protection and redress ; or to be allowed to redress the grievance and 
repel the insult to our national flag, with such means and in such man- 
ner as we can, and shall deem equal and due to self-protection. 

I have the honor to be, with high respect, your obedient servant, 

M. O. ROBERTS, 
By order of the United States Mail Steamship Company. 



CASE OF THE BLACK WARRIOR, ETC. 13 

Mr. Morland to the Secretary of State. 

Consulate of the United States, Havana, 

October 7, 1852. 

Sir : Since my last dispatch, No. 13, under date 23d ultimo, and 
on the 3d instant, at a little past three o'clock p. m., the United States 
mail steamer " Crescent City," commanded by Lieutenant Porter, of 
the United States navy, arrived here with the mails on board, and 
sixty-five passengers, to be landed in this city, and, agreeably to what 
was threatened by the Captain General, in his official communication 
of the 21st ultimo, to me, copy of which was transmitted to you, he 
was peremptorily ordered to leave the port, without being permitted to 
land either mails or passengers. 

Captain Porter was permitted to send me his protest, under cover, 
against the authorities here, which, owing to the shortness of the time 
he stayed, I was not enabled to send to the Captain General, with a 
communication from myself, before his departure ; neither was I able 
to communicate with Captain Porter, but I sent the document to the 
Captain General early next morning, since which I have not heard 
from his excellency. 

I accompany herewith a copy of Captain Porter's protest, and of 
my note to the Captain General when the same was sent to him. 

I have the honor to be, sir, with great respect, your obedient servant, 

JOHN MORLAND, Acting Consul. 



Consulate of the United States, Havana, 

October 4, 1852. 

Most Excellent Sir : The accompanying document I received 
last evening, to be sent to your excellency, from Captain Porter, of 
the United States mail steamer "Crescent City," who was ordered 
out of port immediately, before I could have time to comply with his 
request. Captain Porter has been obliged to take with him the mails 
intended for this port, and upwards of sixty passengers destined for 
this city. 

I have the honor to be your excellency's obedient servant, 

JOHN MORLAND, 
Commercial agent, in charge of the Consulate of the United States. 

October 2, 1852. 

Whereas the Spanish authorities in Cuba have issued an order to 
prevent the entrance of the United States mail steamship Crescent 
City into the port at Havana, to which the said steamship is bound in 
the pursuit of her legitimate business, no offence having been com- 
mitted, on the coast pf Cuba, against the laws of Spain, by the officers 
or crew of said vessel, and the said order being in direct contravention 
of the treaty stipulations between the two countries, I do therefore 
strongly protest, in the name of the United States Mail Steamship 
Company, whose interest I represent, and also in the name of the gov- 
ernment of the United States, whose officer I am, against a proceeding 
so arbitrary. 



14 CASE OP THE BLACK WARRIOR, ETC 

The Spanish authorities in Cuba, for the extraordinary course taken 
by them, profess to hold the United States Mail Steamship Company 
responsible for newspaper articles published in the United States, 
and which are alleged to have been written by the purser of the Cres- 
cent City. 

It has been distinctly declared by me, (though no such declaration 
was called for on my part,) that Mr. Smith, the purser, had no agency 
in composing or publishing any such articles. I protest against the 
United States Mail Steamship Company being held responsible for the 
publication of any articles in the newspapers of the United States, as 
such matters are wholly beyond the control of said company, as well 
as of the officers of the ships connected therewith. 

The press of the United States acknowledges no direct censorship 
from any quarter whatsoever, and is amenable only to the laws of the 
government. I protest against an American citizen, and an officer of 
the ship, being held responsible for such publications, and being treated 
with personal disrespect; such conduct is unworthy a nation that pro- 
fesses to have attained the highest degree of civilization. 

I protest against the non-admission of this ship into the harbor of 
Havana, as it is a deep injury to the United States Mail Steamship 
Company, who are thereby disabled from complying with their con- 
tract to the government of the United States, and which company have 
already received most serious injuries from the hands of the Spanish 
government by having their ships driven out of the harbor of Havana. 

Respectfully submitted : 

DAVID D. PORTER, 

Lieut. U. S. N., and commanding U. S. mail steamship Crescent City. 

To the Authorities of Cuba. 



Mr. Conrad to Mr. Roberts. 

Department of State, Washington, 

October 8, 1852. 
Sir : Having occasion for a personal interview with you, I will thank 
you to come to this city for that purpose as soon as may be practicable. 
I am, sir, &c, 

C. M. CONRAD, 

Acting Secretary. 
M. O. Roberts, Esq., 

President of the U. S. Mail Steamship Company, New York. 



Mr. Conrad to Mr. SharJcey. 

Department of State, Washington, 

October 11, 1852. 
Sir : I have to acknowledge the receipt of the dispatch from the 
consulate, No. 13, accompanied by its correspondence with the Cap- 
tain General of Cuba, occasioned by an alleged publication in the news- 



CASE OF THE BLACK WARRIOR, ETC. 15 

papers of New York of intelligence relative to that island, by William 
Smith, the purser of the United States mail steamer Crescent city. 
Since your dispatch reached the department, a letter has been received 
from the president of the Steamship Company, stating that the " Cres- 
cent city had been forbidden to land her passengers and mails at 
Havana, and had been ordered out of that harbor. The letter also 
states that the Cuban authorities had previously committed similar acts 
of inhospitality towards other steamers of the same company. 

The public journals have also recently represented that United States 
vessels generally, at Havana, have been subjected by the authorities to 
various annoyances ; that they have been searched ; that police officers 
have been placed and kept on board of them ; and that their letter bags 
have been opened and letters taken therefrom, &c. The department 
has no means of judging of the truth of this statement, especially as 
your dispatches are silent on the subject. You will therefore lose no 
time in collecting and transmitting accurate information on the subject. 

I am, sir, &c, 

C. M. CONRAD, 

Acting Secretary. 

To Wm. L. Sharkey, Esq., &fc, #"c, Sfc. 



Mr. Sharkey to Mr. Conrad. 
[Extract.] 

Vicksbtjrg, October 11, 1852. 

Sir :** * * * * * * * 

A new cause of difficulty has now occurred in consequence of the course 
pursued by the authorities of Havana towards the steamer Crescent 
city. This affair will doubtless command the attention of the govern- 
ment, and, it is hoped, be adjusted without difficulty. Allow me 
to say that a new treaty with Spain might possibly be the best means 
of producing a permanent good understanding between the two gov- 
ernments. I hope to be in Havana by the first of November at furthest, 
and will be happy to observe any instruction the department may think 
proper to give. 

With great regard, I have the honor to be your obedient servant, 

W. L. SHARKEY. 

Hon. C. M. Conrad, 

Acting Secretary of State of the United States. 



Mr. Morland to Mr. Webster. 

[No. 15.] Consulate of the United States, Havana, 

October 18, 1852. 

Sir : The arrival of the " Crescent city" here on the 14th instant 
caused very considerable sensation. This vessel was suffered to lie, 



16 CASE OF THE BLACK WARRIOR, ETC. 

but not permitted to land her mail or passengers, or to have any com- 
munication with the shore ; but the government boats went alongside 
and communicated with Captain Porter, who desired a communication 
to be delivered to me, but was refused. Believing there was something 
that might require action on my part, I went personally to the Captain 
General to get his permission to go and receive it. On arriving at the 
country seat of his excellency, I found there one of the consignees of the 
vessel, (who had been, as I understood, alongside with the authorities,) 
who represented to the Captain General that there was a package for 
me on board, and that he understood Captain Porter to say that it was 
a communication from the American government, which induced his 
excellency to give his permission for me to communicate with Captain 
Porter, and to receive the dispatch, which was done ; but on opening it, 
I merely found another protest, (copy of which is herewith enclosed,) 
and which I transmitted to the Captain General, informing him likewise 
that Captain Porter had stated that he had come by express orders of 
the Postmaster General. 

Having in my previous communication of the 4th instant stated the 
fact of the " Crescent city" being the bearer of the United States mails, 
and officered by officers of the navy of the United States, no notice was 
taken until the 16ih, when, at 10 o'clock p. m., I received a communi- 
cation, (copy of which is herewith enclosed,) under date of 15th instant, 
wherein you will notice he rebukes me for acting in affairs foreign to 
my functions. 

Considering the " Crescent city" very different from a common mer- 
chant vessel, as a vessel chartered by the United States to carry the 
mails, and officered by officers from the Americen navy by permission 
of government, I had no hesitation in sending Captain Porter's protest, 
in both cases, and shall make such explanation to the Captain General. 

I have the honor to be, very respectfully, your obedient servant, 

JOHN MORLAND, 

Acting Consul. 

Hon. Daniel Webster, 

Secretary of State, Washington city. 



Consulate of the United States, Havana, 

October 14, 1852. 

Most Excellent Sir : Having, by your excellency's permission, 
gone alongside of the American mail steamer " Crescent city," to re- 
ceive from Captain Porter a package said, as I understood Mr. Morales 
to say to your excellency, to contain dispatches from the government 
of the United States, I received from Captain Porter a package contain- 
ing only an extension of his protest, (w T hich I herewith send your excel- 
lency,) made on the former occasion of his being refused entry here ; 
but I have to state to your excellency that Captain Porter could not have 
received dispatches at New Orleans from the United States govern- 
ment, there not being sufficient time, but that the agent of the mails 
at New Orleans did receive a telegraphic communication ordering the 
" Crescent city" with the mails to come to this port, and deliver them, 



CASE OP THE BLACK WARRIOR, ETC 17 

if permitted ; if not, to proceed on to New York. This I believe is 
what the captain communicated to Mr. Morales, as those orders were 
from the Postmaster General of the United Statee, who is a member 
of the Cabinet. These vessels bearing the United States mail are 
hired for that purpose, and officered entirely by officers of the navy of 
the United States. 

I have the honor to be, with great respect, your excellency's obedient 
servant. 

JNO. MORLAND, 
Com. Agt. in charge of the Consulate of the United States. 

His Excellency Sefior D. Valentin CaNedo, 

Governor and Captain General of Cuba, fyc, &fc., fyc. 



Protest. 

October 14, 1852. 

Whereas the first article of the treaty of amity between Spain and 
the United States declares there shall be a firm and inviolable peace 
and sincere friendship between his Catholic Majesty, his successors and 
subjects, and the United States, and the citizens, without exception of 
persons or places. Article 6th of the same treaty promises mutual 
assistance and kindly acts towards the ships of either power when in 
the ports of the other, which engages to defend and protect them to 
the extent of jurisdiction by land or sea ; and article 9th secures to the 
citizens or subjects of each free access to the courts of justice of the 
other in all cases, and provides that all cases be prosecuted by order 
and authority of law only, and that the parties shall have liberty of 
counsel and defence. 

How far the Spanish authorities in Cuba have conformed to this 
treaty is apparent from the fact that they have arbitrarily, and without 
any form or process of law, caused a United States Steamship engaged 
in the pursuit of a legitimate and peaceful business to be turned from 
their port on one occasion, and refused communication on another, for 
an imputed offence committed in the territory of the United States, 
and which offence, if actually committed within their own territory, 
the Spanish authorities had no right to punish an American citizen for.. 

On two occasions the undersigned has, in plain terms, denied that 
Purser Wm. Smith wrote anything against the Spanish government in 
the newspapers of Vac United States, but the word of an officer (who 
has heretofore enjoyed the confidence of his government and the com- 
pany he serves) has been as entirely disregarded by the Cuban authori- 
ties as if they were ignorant of the polity which governs civilized 
nations. 

On the contrary, they have pursued a vindictive course, which must, 
if persevered in, inflict great and serious injury on the commerce ot 
the United States, and against which course, as applied to this vessel or 
any of the company's vessels, he, the undersigned, once more most 
strongly protests. 

The undersigned begs leave to dvnw the attention of the Spanish 



18 CASE OF THE BLACK WARRIOR, ETC. 

government in Cuba to the fact that the Crescent City sailed from 
New York with a large number of American and Cuban passengers on 
board, every one of whom had with him a passport from the Spanish con- 
sul at New York, granting permission to sail in the Crescent City, for the 
port of Havana, with a guarantee of sale landing on the shores of Cuba; 
moreover, that the Spanish consul at that place did not inform the pas- 
sengers, or give any notice to the United States Mail Steamship Com- 
pany that there was a likelihood of the Crescent City being prevented 
from entering the port of Havana. 

It is true that a " manifesto" was issued to the undersigned; but the 
company were in no wise bound by such a "manifesto," having per- 
fect right to consider it as the hasty and ill-advised act of a subordi- 
nate officer, Martin Galiano, b\ r whom it was signed, which act, if per- 
severed in, would interrupt the friendly intercourse of the two countries, 
and which they would likely not repeat after the disavowal of the im- 
puted offence, of the undersigned. 

The Spanish authorities in Cuba have, in the most arbitrary course 
pursued by them, violated the treat\ T of amity existing between the 
two countries — have inflicted serious injuries on private individuals, and 
on this company. Interests of large amount are likely to suffer by the 
non-deliverance of the mail intrusted to the government officer of a 
friendly nation, and the wheels of commerce, as far as regards this 
ship, are entirely at a stand. 

Mr. Smith, the officer in question, has been a long time employed in 
the eompairy's service by the full knowledge and previous countenance 
of the Spanish authorities, who have driven him from their harbor; 
and it is a well known fact that the undersigned, and those under his 
command, have always abstained from any acts of interference with the 
affairs of the island, either bv speech or act, though it might naturally 
be supposed that they could not help but sympathize with the misfor- 
tunes of captives. 

In conclusion, the undersigned takes this opportunity to protest again, 
in the strongest terms, against the indefensible disregard of the treaty 
of amit}" and law of nations by which American citizens are, without 
notice and legal accusation of offence, or opportunity offered to defend 
themselves, subjected to proscription and severe mercantile loss — the 
flag of the United States treated with scorn and contempt, and the 
government treated with disrespect, in the person of its officer, who, 
though commanding a ship owned by a eompairy, is placed in his po- 
sition by a written order of the United States government, and by a 
law of Congress of the United States. • 

The undersigned also protests against not being allowed to make 
known to the American consul the situation in which he is placed, 
having been refused, most positively, permission to communicate with 
the representative of* the United States in the island of Cuba. An ap- 
peal to the consul of a country is even respected among the Barbary 
Powers, of whom a knowledge of the law of nations is not so much to 
be expected. 

Respectfully submitted : 

D. D. PORTER, Lieut. U. S. N. 
. To the Spanish Authorities of Cuba. 



• 



CASE OF THE BLACK WARRIOR, ETC 19 

[Translation.] 



[ L . s.] Political Department, Section First, 

Havana, October 15, 1852. 

Sir : With your communication of the 4th instant I have received 
the document which is addressed to me by one Porter, captain of the 
merchant steamer "Crescent City," comprising the protest which he 
thought proper to make on his arrival at this port the day before. 

Neither on account of the character of the contents of this document, 
nor in consideration of the unusual form in whi^h it has been drawn, 
can I permit myself to enter into any reply in regard to it, and there- 
fore I confine myself to state that I have acquainted my government 
with the matter to which it refers, and 1 hope, in future, that you will 
abstain from addressing yourself to my authority concerning matters 
which, like the present, are foreign to your functions. 

God preserve you a thousand years. 

VALENTIN CANEDO. 

To the Commercial Agent 

of the United States at this ylace. 



Consulate of the United States, Havana, 

October 18, 1852. 

Most Excellent Sir: Your excellency's communication of the 15th 
reached me on the 16th late at night; and as your excellency is pleased 
to rebuke me for sending to your excellency Lieutenant Porter's pro- 
test, and consider the " Crescent City " as a mere merchant-vessel, I beg 
leave to state that the " Crescent City" and "Empire City" are both 
vessels freighted by the government of the United States, and are com- . 
mianded by officers of the navy of the United States, placed there by 
permission and with the approval of the government. Hence it was 
that I considered it my duty to forward to your excellency Lieutenant 
Porter's protest, without any wish or intention to enter into any ques- 
tions that might be considered foreign to my functions ; and I now 
merely give your excellenc}^ this statement, believing that your excel- 
lency may not have been aware of the true character of the "Crescent 
City ;" and I was in hopes the positive, denial of Lieutenant Porter that 
William Smith, the purser of that vessel, had ever given anything to 
the press in the United States, of any nature whatever, would have 
had some influence in producing a more favorable view of the sup- 
posed act. 

I take this opportunity of acknowledging the receipt of your excel- 
lency's communication relative to Samuel Harme, (dated 18th instant,) 
for which your excellency will pLase receive my thanks. 

•I have the honor to be > our excellency's obedient servant, 

JNO. MORLAND, 
Commercial Agent in charge of the Consulate of the U. S. 

His Excellency Senor Don Valentin CaKedo, 

Governor and Caytain General of Cuba, 8fc. 



20 CASE OF THE BLACK WARRIOR, ETC 

Mr. Mori and to the Secretary of State. m 

[Extract.] 

[No. 16.1 Consulate of the United States, Havana, 

October 20, 1852. 

Sir : My dispatch No. 15, under date 18th instant, sent per mail 
schooner via Charleston, contained sundiy documents touching the 
affair of the " Crescent City." I now have the honor to enclose here- 
with duplicates of my said dispatch, and of the papers accompanying 
it. I likewise transmfc a copy of my answer to the Captain General's 
communication of the ]5th instant, which I had no time to prepare for 
transmission by that vessel, as she stopped here but a few minutes 
after it was written. 

I have the honor to be, sir, with great respect, your obedient servant, 

JNO. MORLAND, 

Acting Co?isid. 



Mr. Roberts to the Acting Secretary of State. 

Office of the U. S. Mail Steamship Company, 

New York, October 21, 1852. 

Sir : I have the honor to enclose, herewith, an affidavit made and 
subscribed by Mr. William Smith, purser of the United States mail 
steamship "Crescent City," by which it will be seen how utterly un- 
founded have been all the charges in relation to calumnious publica- 
tions alleged to have been made by him against the government of the 
island of Cuba, or of any interference in its affairs, and how causeless 
has been the high-handed course of its authorities in this respect. 

I have the honor to be. with high respect, your obedient servant, 

M. O. ROBERTS, 
Agent of the U. S. Mail Steamship Company* 



% United States of America, ) 
Southern District of New York, y 

I, William Smith, purser of the United States mail steamship 
"Crescent City," being duly sworn, depose and say, that the allega- 
tion contained in a certain order or manifesto, signed " M. Galliano," 
an officer of the government of the island of Cuba, dated at Havana 
the 4th day of September, 1852, and repeated in the official paper at 
Havana, that I had " published the most gross calumnies against the 
government of said island," and the further allegations, which I under- 
stand have been made unofficially to the government of the United 
States, that I had held communication with disaffected persons in the 
port of Havana or the island of Cuba, and had been the bearer of 
letters or messages to and from such persons, are all utterly without 
foundation. I have never written or published anything against the 
government of the said island of Cuba, nor have I ever carried letters 



CASE OF THE BLACK WARRIOR, ETC 21 

or messages to and from disaffected persons in said island, or held any 
communication with such persons, or in any manner interfered with the 
affairs of the said island, or the proceedings of its authorities. I have 
confined myself strictly to the discharge of the duties of purser of the 
ship, and have demeaned myself accordingly. Furthermore, it has 
been the express command of Captain Porter, and of the Mail Steam- 
ship Company, that no officer or person employed on the ship should 
be allowed to carry letters outside of the mail, other than those be- 
longing to the ship's business ; and, when letters have been sent on the 
steamer after the mails have been closed arid Reived on board, they 
have been placed in charge of the purser, and in all cases delivered to 
the postmaster at Havana. 

I also further depose and say, that I have never been in any manner 
connected with any association or expedition for hostile purposes in re- 
lation to the island of Cuba, or for annoying, resisting, or interfering 
with its authorities. 

WILLIAM SMITH. 

Sworn to this 21st day of October, 1852, before me, 

JOSEPH BRIDGHAM, 
U. S. Com. Southern District of New York. 



Mr. Law to the Acting Secretary of State. 

Office of the U. S. Mail Steamship Company, 

New York, October 23, 1852. 

Sir : Mr. Roberts had the honor to address you on the 6th instant, 
in relation to the course of the authorities of the island of Cuba towards 
the steamships of this company, and especially in relation to the 
" Crescent City." 

I await your reply to his communication, to determine the course of 
the company. The 27th instant being the sailing day of the next 
steamer for" New Orleans, via Havana, we are daily inquired of 
whether mails and passengers can be allowed to land at Havana, and 
whether the Cuban authorities are to be permitted to continue the 
course towards the ships of this company, of which the government of 
the United States have been heretofore apprized. 

I have the honor to be, very respectfully, your obedient' servant, 

GEORGE LAW, President. 



Mr. Conrad to Mr. Law. 

Department of State, 

Washington, October 25, 1852. 

Sir : Your letter of the 23d instant has been received. No intelli- 
gence has reached this department from Cuba, since that which was 
received by your steamer. It has no means of knowing the intentions 
of the authorities of the island other than what, you possess, and can- 



22 CASE OF THE BLACK WARRIOR, ETC 

not, therefore, inform you whether mails or passengers will be per- 
mitted to land there or not. It mny, however, be inferred, froni the 
last proceedings of the authorities, that the mail and passengers con- 
veyed in the steamer Crescent City will not be permitted to land them, 
in case the individual named, William Smith, should remain on board 
of her. 

I am, sir, very respectfully, your obedient servant, 

C. M. CONRAD, Acting Secretary. 

George Law, Esq., New York. 



Mr. Law to Mr. Conrad. 

Office of the U. S. Mail Steamship Company, 

New York, October 27, 1852. 

Sir : I had this day the honor to receive your letter of the 25th 
instant. 

On the 6th instant we addressed the Department of State a letter, 
detailing at some length the grievances of which this company feels it 
has a right to complain in relation to the course on various occasions 
of the authorities of the island of Cuba towards the ships of this com- 
pany ; and we respectfully requested to be advised as to our own 
rights, and whether the government of Cuba were justified in pursuing 
the course above alluded to. 

Our motives in writing that letter were to bring to the notice of our 
government, which we felt bound to do, certain acts of a foreign gov- 
ernment which we could not but regard as oppressive and unjust to- 
wards this company, and to American citizens and shippers engaged in 
lawful commerce with that power, and also as an insult to the flag of 
our country. The company suppose that the authorities of Cuba had 
no right to dictate to our own government or to the owners 'of Ameri- 
can ships who should be employed on board of them, or to make a 
compliance or non-compliance with their dictation in this respect a 
pretext for excluding such ships, with their passengers and mails, as 
did not conform to their directions in relation to the employes on board 
of them. If these impressions were not well founded, we supposed 
that we should be so advised by the Department of State. If they 
were well founded, we had, as we supposed, a right to expect from our 
government protection against the injury. We have as yet received 
no reply from the Department of State to our letter of the 6th instant, 
although addressed in duplicate both to Washington and Marshfield ; 
and the letter of the Acting Secretary of State of the 25th instant, in 
reply to my letter of the 23d, fails to afford us the desired information. 
Every day's delay is, and has been, a great loss to this company, ex- 
tremely detrimental to the commercial interests of the country, and, 
more than all, subjects us, if correct in our impressions, to the humilia- 
tion of submitting to a wrong. 

I desire respectfully to say that it was less our intention to inquire 
what course the government of Cuba would pursue than to ascertain 
what interpretation our own government gave to the rights of Ameri- 



CASE OF THE BLACK WARRIOR, ETC. 23 

can citizens and of this company, and what course was expected of 
the company, in order to know "how far we would be able to comply 
with it. 

I have the honor to be, very respectfully, your obedient servant, 

GEORGE LAW, President. 
Hon. C. M. Conrad, 

Acting Secretary of State. 



Mr. Morland, Acting Co?md, to Mr. Conrad. 

[Extract.] 

TNo. 17.1 Consulate of the United States, Havana, 

October 27, 1852. ' 

Sir: I have had the honor to receive your dispatch of the 11th 
inst., by U. S. steamship Powhatan, which arrived in this port on 
the 23d, having on board the minister to Mexico and Commodore 
Newton. I now beg leave to reply to the several questions contained 
in your said dispatch, by referring you to my communications, Nos. 
13, 14, 15 and 16, relative to the affair of the U. S. mail steamship 
" Crescent City." 

As to the "El Dorado" steamer, the treatment whereof by the 
authorities here has been brought to the notice of the Department of 
State, I have to say that the affair occurred when Mr. Sharkey, the 
consul, was here. I learn, however, that she came here from Aspin- 
wall on the 19th day of July last, with 290 passengers, five having 
died on the passage, and three being sick with fever on arrival^ but - no 
cholera. This vessel was not allowed to have fuel, provisions, or 
water sent to her, (of which she was in great need,) but these articles 
were taken to her outside by the "Empire City" steamer, belonging 
to the same company. The "El Dorado" was allowed to make fast to 
a buoy one mile outside the Moro, until the health officers had visited 
her, when the Captain General called a meeting of the Board of Health, 
which decreed that the ship must immediately leave the port, not 
permitting her to lie at anchor a moment longer, or to have commu- 
nication of any kind with the shore. She therefore proceeded to Key 
West. These facts appear in the records of this consulate, in a pro- 
test entered by the agent of the company owning the " El Dorado." 

The other complaints made by our merchant ships are, particularly, 
the placing on board police officers and soldiers on two or three of 
them, to prevent any obnoxious person from landing, and also to pre- 
vent such parties as are accused of being connected with the supposed 
attempt at revolt from escaping out of this island. This, of course, is 
annoying enough. The custom has been more particularly exercised 
in the case of American steamers, where so many passengers come 
and go, that it is very easy for parties to effect their escape ; find I have 
heard, from good authority,- that many have so escaped. A police 
officer is placed on board of every merchant vessel that brings pas- 
sengers. It is an annoyance, no doubt, but I do not think it is in any- 
way prejudicial to the interests of American commerce. 



24 CASE OF THE BLACK WARRIOR, ETC 

I will now state, in obedience to your directions, the details of the 
late occurrence relative to the barque Cornelia, Captain Ward, of New 
York, which appears to be the most important case excepting that of 
the " Crescent City." That vessel had cleared and was proceeding 
to sea, when a government boat went alongside to search for a sus- 
pected person, and some dispatches supposed to have been sent under 
his care from the disaffected here to certain people in the United States 
connected with them. The person was found on board ; and although 
he had his passport, he was taken out of the Cornelia and brought 
ashore, and he has been in prison ever since. The officer likewise 
found a Mr. Samuel Harme, or Hearkness, an American engineer, se- 
creted on board, as he had no passport ; he was also brought on shore 
and imprisoned, but allowed his liberty in a few days at my request. 
The captain of the Cornelia came to the consulate and noted his pro- 
test, but did not extend it. He stated to me that the captain of the port 
demanded the dispatches which Guzman (the other person alluded to) 
was supposed to \m\e, and that he had answered that he could not 
swear whether he had received them or not, as he was in the habit of 
throwing into a drawer all letters sent on board not in the letter bag. He 
spoke of abandoning his ship, but I told him that would never do ; and 
I question whether it was anything more than a mere threat, without 
any serious intention to do so. He complained of the violent and in- 
sulting language which he asserted the captain of the port had used to- 
wards him on his denying a knowledge of the existence of the dispatches 
sought after. Captain Ward proceeded to sea on the next morning with 
his letter-bag. There is no doubt but the letter-bag, which had been 
taken out of the ship by the officers, was examined, and some packages 
directed to suspicious persons abstracted, as the Captain General gave 
notice through the newspapers for the persons who may have written 
those letters, giving the address of each, to call at the palace and witness 
the opening of the said letters ; and some did go, but how many I know 
not; and as mere reports are less to be trusted here than anywhere I have 
ever been, I shall not venture to give any. Under these circumstances, 
when the laws were violated on the one hand, and the government was 
protecting itself on the other, I did not deem it a case in which I had a right 

to interfere ; therefore I made no official report of it to the department. 

* * # * # ■ * 

I have the honor to be, sir, with great respect, your most obedient 
servant, 

JOHN MORLAND, Acting Consul 

Hon. C. M. Conrad, 

Acting Secretary of State, Washington. 



Mr. Conrad to Mr. Barringcr. 

[No. 64.] Department of State, 

Washington, October 28, 1852. 

Sir: An incident connected with our relations with Spain has re- 
cently occurred, which is of so grave a character as, in the opinion of 



CASE OF THE BLACK WAKRIOR, ETC. 25 

the President, to require: that it should be immediately laid before the 
government of that country. 

t In the year 1847 a company was formed, under the auspices of this 
government, for the purpose of conveying the mails in steamships from 
New York and New Orleans to Havana, there to connect with another 
line to the Isthmus of Panama. The law under which the arrange- 
ment was made required that the steamers should be placed, to a cer- 
tain extent, under the control of the government, and should be com- 
manded by officers of the navy. Under this arrangement the mails 
have been regularly carried from New York and New Orleans to 
Havana and back. By another arrangement the mail is carried from 
Charleston to Havana.* All this has been done with the full knowledge 
of the Spanish government and of the local authorities. (See the in- 
structions of Mr. Buchanan to Mr. Saunders, No. 16, and Mr. Saunder's 
dispatches to the department, Nos. 26, 27, 28, 33, 47, 49, and 51 ; see 
also copy of a letter from Mr. Campbell, United States consul at Ha- 
vana, to "Mr. Buchanan, dated November 17, 1847, which is hereto 
annexed.) These documents all refer to the Charleston line alone, but 
the New York and New Orleans line went into operation about the 
same time, and the same facilities have, it is understood, been extended 
by the local authorities to both lines. 

The mails carried by the steamers are placed in the charge of an 
agent of the Post Office Department on board, and, on their arrival at 
Havana, are delivered to the postmaster of that place on his receipt, 
and the return mails are received from him. 

On the 3d instant the Crescent City, one of the steamers employed 
in this service, on her voyage from New York to New Orleans, touched, 
as usual, at Havana to land the mail and the passengers (65 in number) 
destined for that port. She was not permitted to land or send the mail 
ashore, but was peremptorily ordered out of the harbor, although it was 
then threatening a gale. 

This government has deferred taking any action in relation to the 
matter until the facts could be fully ascertained. This has been done. 
The reports of the acting consul at Havana, (the consul himself being 
then absent,) and of the 'captain of the steamer, have been received. 
From these documents, copies of which are hereto annexed, it appears 
that on the preceding voyage of the Crescent City to Havana — to wit : 
on the 4th day of September — the agents of the company (a commer- 
cial firm in that city) were informed, by a letter from the secretary of 
the Superior Civil Government, that an individual of the name of Wm. 
Smith, the purser of the vessel, had, on his arrival at New York from 
the preceding voyage, published the grossest calumnies against the gov- 
ernment of the island; and that if that individual should thereafter re- 
turn in any of the steamers of the company, or if any other person 
employed on board of them should venture to abase, in a similar manner, 
the privileges granted by the Spanish authorities in the ports of the 
island, that fact alone should be sufficient to prevent the vessel which 
brought him irom entering the port. No notice of this order was given 
to the American consul until the 21st of September, when a copy of 
the letter addressed by the Superior Civil Secretary to the agents of the 
company was sent to the acting consul by the Captain General, 



26 CASE OF THE BLACK WARRIOR, ETC 

although in the interval between the two dates the steamer had arrived 
at Havana, and again departed for New York ; consequently, the acting 
consul had no means of notifying this government of its existence 4h 
time for it to take any action in the matter before the return of the 
steamer to Havana; nor was any notice given to the government 
through the Spanish minister in this country. The consequence was, 
that the steamer returned to Havana with the obnoxious individual on 
board, and, as has already been stated, was prohibited from landing, 
On her return voyage from New Orleans to New York, and before this 
government was apprized of the fact, she again put into Havana to 
land the mail, and, for the same reason, was again denied permission 
to do so. You will observe, that the secretary of the Superior Civil 
Government, in his letter to Messrs. Drake & Co., the agents of the 
company, declares that it was the intention of the government to persist 
in the course adopted towards the Crescent City, and that if any person 
employed on board of one of the steamers of the company should com- 
mit a similar offence to that with which the purser of that vessel was 
charged, that fact alone would be a sufficient cause for excluding such 
steamer from the port. 

It may be well to add, that Wm. Smith, the individual whose alleged 
calumnies against the government had occasioned these proceedings, 
has, since his return to this country, made oath that this charge is en- 
tirely unfounded, and that he has " never written or published anything 
against the government of the island of Cuba." (See copy of his affi- 
davit, herewith enclosed, marked A.) 

The President directs that you lose no time in communicating these 
facts to her majesty's government, and in expressing his surprise and 
regret that they should have occurred. 

You will state that this government does not question the right of 
every nation to prescribe the conditions on which the vessels of other 
nations may be admitted into her ports. That, nevertheless, those con- 
ditions ought not to conflict with the received usages which regulate the 
commercial intercourse between civilized nations. That those usages 
are well known and long established, and no nation can disregard them 
without giving just cause of complaint to all other nations whose inter- 
ests would be affected by their violation. 

, That the circumstance of an officer of a vessel' having published, in 
his own country, matter offensive to a foreign government, does not, 
according to those usages, furnish a. sufficient cause for excluding such 
vessel from the ports of the latter. 

That, moreover, the Crescent City was at the time of this Occurrence 
employed in the transportation of the mail,- which is everywhere a mat- 
ter of great public concern. 

That, in this country, the duty of providing for this object, whether 
at home or abroad, devolves upon the executive branch of the govern- 
ment; and although it is invariably discharged not directly through its 
own officers, but through the medium of contracts with individuals, the 
government is responsible for the proper performance of this duty. 
Any measure, therefore, tending to impede its fulfilment, cannot be 
viewed as directed against the agents to whom its execution is intrusted, 
but against the government itself 



CASE OP THE BLACK WARRIOR, ETC. 27 

That the steamerts employed in transporting the mail from this coun- 
try to Havana, being in the employment of government, and placed by 
law, to a certain extent, under its control, partake, in some degree, of 
the character of public vessels. 

That, although no positive arrangements exist between this govern- 
ment and that of Spain, relative to the mail service between their re- 
spective countries, that government was fully aware that mails were 
regularly conveyed from the United States to the city of Havana, and 
the local authorities, so far from objecting to this practice, had not only 
acquiesced in it for a series of years, but had, in various ways, sanc- 
tioned and encouraged it. 

That, under these circumstances, this government had a right to ex- 
pect, that if the Captain General of the island should see fit to impose 
new and unusual conditions upon the continuance of these mails, due 
notice of these conditions would be given to this government before 
proceeding to enforce the penalties attached to their non-observance. 
Bat before it was possible for this government to have any official 
knowledge of the Captain General's intentions, the mail was sent away, 
and the vessel that conveyed it was, in a manner unusually harsh and 
offensive, driven from the harbor. All this was done, not for any vio- 
lation of the laws of nations, or of Spain, but for an act alleged to 
have been done by a subordinate employe of the company, in his 
own country, and of which there is every reason to believe he is en- 
tirely innocent. 

That the President cannot but consider this proceeding, under all 
its circumstances, as not only a violation of the usages of civilized na- 
tions, and of the tacit understanding which may fairly be said to result 
from the long acquiescence of Spain in the transportation of a mail to 
Havana, but as an act of marked discourtesy to this government. If 
the, Captain General thought that a vindication of his character, or his 
dignity, required that he should notice anonymous attacks made on his 
government by the newspapers of a foreign country, the means em- 
ployed for that purpose- should, at least, have been consistent with jus- 
tice, the usages of nations, and the courtesy due to a friendly govern- 
ment. That some apology might have been found for it in the irritation 
caused by a supposed insult to the government ; but that, from the let- 
ter of the Captain General to the acting consul of the United States, it 
would seem that it was the result of a deliberate policy, and that it was 
the determination of the government to apply to the mail steamers of 
the United States a system of treatment different from that which was 
appliecf to all other vessels. 

The President will not permit himself for a moment to believe that 
her Majesty's government will sanction an order which amounts almost 
to a declaration of hostility to this government ; but, on the contrary, con- 
fidently anticipates that it will receive its prompt and decided disappro- 
bation. Should he be disappointed in this expectation, this government 
will then be called upon to determine what course a just sense of what 
is due to its own dignity and interests requires it to pursue. 

In conclusion, you will remind her Majesty's government that in the 
efforts it has constant!} 7- made to restrain any portion of the inhabitants of 



28 CASE OF THE BLACK WARRIOR, ETC. 

this country from disturbing the peace of her Majesty's dominions, this 
government has unequivocally manifested its anxious desire to cultivate 
the most friendly relations with that of Spain. That an additional 
proof of this desire has recently been afforded by this government in 
making an exception to the usual practiee of most nations, by taking 
steps towards indemnifying the subjects of her Majesty who had sus- 
tained losses by the acts of a mob in one of our cities. That, on the 
other hand, in the clemency extended by her Majesty towards a num- 
ber of misguided citizens of this country, who had justly incurred the 
penalty of her laws, this government had beheld a gratifying evidence 
that these kind feelings were reciprocated by her Majesty's government. 

You will assure her Majesty's government that this government is 
disposed to make every allowance for the distrust naturally engendered 
by past events, and for the desire of the local authorities to adopt all 
reasonable precautions to prevent their recurrence ; but that if the 
measures recently adopted by them were designed for that purpose, 
they are calculated to defeat their own object, as they must manifestly 
tend not only to encourage those who are engaged in unlawful schemes 
against the island, but to awaken the just resentment of the sober and 
intelligent citizens of the country, and seriously to compromit the peace 
of the two nations. 

I am, sir, very respectfullv, your obedient servant, 

C. M. CONRAD, 

Acting Secretary. 

D. M. Barringer, Esq., 6fc, fyc, Madrid. 



Consulate of the United States, Havana, 

November 17, 1847. 

Sir : On the evening of the 15th instant I had the honor of receiv- 
ing your official communication of the 20th of October, which was 
brought by the ship Norma from New York. •The subject of mail 
steamers shall, as you request, receive my best and most energetic at- 
tention. I had previously been unofficially informed of the contem- 
plated enterprise, and set myself to ascertain what privileges would be 
conceded, and am authorized (as yet not officially) to say they will im- 
mediately be placed on the same footing with the British mail packet 
steamers. The concessions to the British steamers were obtained at 
Madrid by the English minister, when Espartero, the friend of England, 
was prime minister. I shall certainly use every effort to obtain still 
greater concessions than those already conceded, to wit : 

1st. The steamers will be exempted from the payment of all the 
contributions always charged at the custom-house, in case they come 
and depart in ballast, or when they bring cargo that no operation is 
made upon. 

2d. They are exempted from custom-house charges when they only 
land passengers, baggage, packages of samples, newspapers, and other 
effects of the same kind. 

3d. When they import, export, or receive from on board other ves- 



CASE OF THE BLACK WARRIOR, ETC. 29 

sels, articles of commerce not exceeding three tons, of which, however, 
the respective duties must be paid. 

4th. When they import, export, or take to or from other vessels 
merchandise exceeding three tons, they shall pay like other vessels the 
duties for visits, registering, and others established, likewise the ton- 
nage and ponton dues on all free room, excepting that part occupied 
by the machinery and coal. The above I have # over the signature of 
the intendente, but not communicated to me officially. 

You will thus perceive that, for all purposes of mail steamers, the 
concessions are ample ; as freighting vessels and common carriers, they 
would have to pay as such when laden. I shall, however, endeavor to 
obtain greater concessions, in conformity with your instructions, although 
such concessions would, as freighting ships, give them very great ad- 
vantages over the sailing vessels and steamers engaged in the freighting 
of goods to and from the States, as a vessel paying $1 50 per ton could 
not compete with those passing free of tonnage dues. 

I have the honor to be, with great respect and esteem, your most 
obedient servant, 

ROBERT B. CAMPBELL. 

Hon. James Buchanan, 

Secretary of Slate. 



Mr. Morland to Mr. Conrad. 

[No. 18.] Consulate of the United States, Havana, 

October 29, 1852. 

Sir : Since my communication of the 23d instant, (No. 17,) nothing 
worthy of notice has occurred here. 

The United States steam-frigate Powhatan, with the minister to 
Mexico and Commodore Newton on board, sailed } r esterday morning 
for Vera Cruz. 

Judge Conkling informed me that the affair of the mail steamer 
"Crescent City" had been arranged between him and the Captain 
General unofficially ; that the steamer would be allowed on her arrival, 
even if she had Lieutenant Porter and Purser Smith on board, to land 
the mails and passengers, and also to receive both; but that neither trie 
lieutenant nor the purser was to come on shore. But it is understood 
that neither of them is coming in the " Crescent City." 

I nave the honor to be, &c, » 

JOHN MORLAND, 

Acting Consul. 

Hon. C. M. Conrad, 

Acting Secretary of State, fyc, $c. 



30 CASE OF THE BLACK WARRIOR, ETC 

Mr. Conrad to Mr. Law. • 

Department of State, Washington, 

October 30, 1852. 

Sir : Your letter of the 27th instant, has been received. 

That of the 6th instant, to which it refers, was addressed to this de- 
partment by Mr. M. Q. Roberts. 

In consequence of the information it contained, that gentleman was 
requested to repair to Washington. He did so, and had a long conver- 
sation with me in relation to the occurrences at Havana. He is there- 
fore fully apprized that the subject has engaged the attention of the 
department. 

I have only to add, in reply to your own letter, that, as soon as the 
department could obtain authentic information of the occurrences re- 
ferred to, they were made the subject of a communication to the gov- 
ernment of Spain. When an answer to that communication is received, 
it will probably be made public. . 

In the meantime, I must be excused from giving you any informa- 
tion or advice on the subject. 

You may rest assured, however, that neither the honor nor the inter- 
ests of the country will be neglected. 

I am, shy&c. 

C. M. CONRAD, 

Acting Secretary. 

George Law, Esq., New York. 



Mr. Calderon to Mr. Conrad. 

[Translation.] 

Legation of Spain in Washington, 

November 5, 1852. 

His excellency the Captain General of the island of Cnba, Don Valen- 
tin Canedo, informs the undersigned, in various communications lately 
received by him, of all that has passed with Captain Porter, of the 
Crescent City, on his entrance into Havana on the 14th day of October 
last, and on his presenting his second protest, dated the same &&y. 

General Cafiedo at the same time gives an account of the friendly 
and confidential interview which the honorable Judge Conkling had 
with him, while, stopping at that port on his way to Mexico as envoy 
extraordinary and minister plenipotentiary from the United States to 
that republic. 

In compliance with the request of the General, as well as with a view 
of making known the facts precisely as they occurred, the undersigned 
proceeds to give the honorable Mr. Conrad, Secretary of State ad inte- 
rim, the substance of the above mentioned communications. 

The Crescent City returned from New Orleans (after having been 
refused admission into Havana, from persisting to have on board the 
purser, Mr. Smith/on the 14th October last. The day had not }^et dawned ; 



CASE OF THE BLACK WARRIOR, ETC 



31 



and, breaking through the custom observed by all ships, whether na- 
tional or foreign, the C re sent City entered the bay, refusing to give any 
reply to the questions put to it from the Moro castle, concerning this 
proceeding, and the reasons for entering before daybreak, thus infring- 
ing the regulations of the port, known to all, and respected by all. 

"When it had cast anchor, the captain of the port made known that 
the ship must remain without communication with the shore, if the 
purser, Smith, were on board, although it might continue in the bay all 
the time which was considered necessary. 

Senor Morales, representing the house of the consignees, Drake & 
Co., then presented himself to the Captain General, requesting permis- 
sion, which was granted him, to go and speak to Captain Porter. A 
short time after, "the said Mr. Morales returned, accompanied by the 
vice-consul of the United States, and informed the General that Captain 
Porter was bearer of a dispatch from his government to the said vice- 
consul which the latter also affirmed to the General, although referring 
to the testimony of Mr. Morales. His excellency consented that this 
dispatch should be received, out of respect to the government of the 
United States. 

The Crescent City immediately took its departure, firing a gun as it 
passed the Moro castle — a demonstration which, although puerile and 
in bad taste, was considered significative and •ffensive. 

The Cresent City having left the port, the vice-consul, Mr. Mor- 
iand, addressed an official letter to the Captain General, dated this 
same 14th of October, in which he enclosed the second protest before 
mentioned of Captain Porter, who, in order to insure its reception, had 
employed this unworthy artifice, which the government of the United 
States will no doubt condemn. General Canedo enclosed to the under- 
signed a copy of the said communication of the vice-consul, (translated,) 
in which is the following : " But I have to make known to your excel- 
lency, that Captain Porter could not have received dispatches in New 
Orleans from the government of the United States, because there was 
not sufficient time for him to have done so ; but that the mail agent in- 
New Orleans received a telegraphic communication containing the order 
that the Cresent City should go to Havana with the mail, and should 
deliver it, if permission were given to that effect; and if not, should 
continue her voyage to New York. This is what, I believe, was com- 
municated by Captain Porter to Mr. Morales, this order being from the 
Postmaster General of the United States, who is a member of the cabinet. 
As these vessels carry the mail of the United States they are freighted 
accordingly, and the officers belong exclusively to the navy of the United 
States." 

The undersigned leaves it entirely to the upright judgment of the 
Hon. Secretary to qualify as it deserves the stratagems employed by- 
Captain Porter for insuring the reception by the Captain General of his 
irregular protest, and the assertions of the vice-consul, Mr. Morland. 

Without making any commentary, or entering into any further de- 
tails, it appears to the undersigned that the above is sufficient to justify 
the antipathy of the inhabitants of Havana towards Captain Porter, 
and the universal conviction which is there entertained that he is of 
the number of those who have proposed to themselves to bring about a 



32 CASE OF THE BLACK WARRIOR. ETC 

misunderstanding between the two countries, notwithstanding the sin- 
cere desire of the governor of the island of Cuba not only to avoid all 
disagreement, but to preserve the most cordial harmony ; a desire 
which his excellency repeatedly expresses in the most unequivocal and 
sincere manner in tfie communications alluded to by the undersigned. 
Nor will the Hon. Secretary of State be surprised, if, foreseeing some 
disagreeable occurrence in regard to Captain Porter and Purser Smith, 
arising from the public exasperation, however much this would be 
regretted by the General, and however severely he would punish its 
authors, that he should have earnestly desired the undersigned to 
endeavor to persuade this government that prudence and the friendly 
relations subsisting between both countries render it advisable that the 
irritation likely to be produced by the presence of these individuals in 
Havana should be avoided. 

Of the attention and politeness with which General Cafiedo has 
received the Hon. Judge Conkling, and of their non-official interviews 
and conversations, it is probable that the Hon. Secretary of State ad 
interim has already received circumstantial accounts. The undersigned 
having received from General Cafiedo a detailed account of the concili- 
atory result of these interviews, under date of the 29th of last month, 
and believing that no abstract can give so clear an idea of the circum- 
stances as his excellences own communication, encloses herewith a 
literal copy of the dispatch for. the Hon. Secretary of State. 

The Hon. Secretary will observe that out of respect to the wishes 
of Judge Conkling, and to show his consideration to the government of 
the United States, and his high esteem for his excellency President 
Fillmore, the General has granted permission to the Crescent City, 
which left New Ydrk on the 27th, to disembark the passengers and the 
correspondence, but not to land either Captain Porter or Purser Smith, 
should they be on board ; but with the understanding that this permis- 
sion merely extends to this voyage of the 27th, unless, these obstacles 
being removed, the governor of the island may alter, as he is desirous 
to be able to do, his dispositions in regard to the Crescent City, without 
failing in the sacred duty imposed on him of maintaining tranquillity .in 
the island, and of not permitting his authority to be despised. 

The undersigned offers to the Hon. Mr. Conrad a renewed assurance 
of his distinguished consideration. 

A. OALDERON DE LA BARCA. 
Hon. C. M. Conrad, 

Secretary of State of the United States. 



[Translation.] 

Seat of Government of the Island of Cuba, 

Havana, October 29, 1852. 
Most Excellent Sir : The steamer Prometheus, which sailed from 
this port for New York on the 27th instant, at 4 o'clock in the after- 
noon, has taken out a parcel, under cover, to the Spanish consul at that 
port, whom 1 have directed to transmit the same to your excellency 



CASE OF THE BLACK WARRIOR, ETC 33 

without delay, containing communications of mine, dated respectively 
the 22d and 27th, (this very day.) 

Your excellency will have seen, by these communications, all that 
has taken place on the occasion of the second arrival of the Crescent 
City, and the confidential interview I had, on the 25th, with Judge 
Conkling, the appointed minister to Mexico. 

I will then relate to your excellency the continuation of my inter- 
course with this diplomatic functionary, together with whatever the state 
of the question may suggest to me, both in regard to the conferences 
which have taken place here, and in relation to what your excellency 
has been pleased to say to me, in your polite communications of the 
9th, 15th and 18th, which I received on the 27th, in order that your ex- 
cellency may signify to the government of the United States my honest 
intention to preserve the friendly relations which the latter maintains 
with the government of Spain, and my firm determination at the same 
time, not to allow any want of what is due to this nation, on account of 
her power, perhaps not well understood, and, above all, on account of 
the good faith and generosity which characterize her proceedings with 
other friendly countries. 

I told your excellency, in my communication of the 27th, aforemen- 
tioned, that in order to avoid the effects of any mistake in regard to the 
true understanding of the reasons laid down in the conferences which 
I had held with Mr. Conkling, I had asked him to give me a small memo- 
randum, without signature, recapitulating what he had stated to me in 
that conference ; that on receiving this document I had noticed a certain 
reservation in regard to the censure he had cast on the reprehensible 
and inexcusable conduct of Mr. Porter, captain of the " Crescent City," 
during the interview, and that he had likewise omitted to mention the 
offer he had made to ask his government, although confidentially, for 
the withdrawal of said Porter. Being desirous to clear away all doubt, 
and to leave no room for concealment, I sent to entreat the Hon. Mr. 
Conkling that he would have the kindness to come to see me. He did 
so the day before yesterday, and when I had informed him of the dif- 
ference I had noticed between his conversation and his written state- 
ment, he replied to me, that notwithstanding the want of explicitness in 
the latter, on those points to which I have alluded, his fixed determina- 
tion was to ask his government for the removal of Porter, whose con- 
duct he had pronounced, and still designated, as reprehensible and inex- 
cusable. I said to him, in return, that in order to avoid all complication 
and disagreement between what had been spoken and written, 1 thought 
it better for him to withdraw the memorandum, if there was no obsta- 
cle to his doing so ; and having cheerfully acceded to my proposition on 
his part, I proceeded to inform him, that according to what was stated 
in a confidential letter of your excellency of the 19th, neither Porter nor 
Smith would return to Havana, as it had been declared by the Ameri- 
can Secretary of State, whose assurances to this effect were moreover 
confirmed in a telegraphic despatch which was sent from Washington 
to Charleston on the 23d, and brought here by the captain of the Isabel. 
His reply to this was, that such measure would harmonize with the sys- 
tem of government pursued by President Fillmore; adding, "that it was 
3 



34 CASE OF THE BLACK WARRIOR, ETC. 

full time these individuals should retire into private life, as they had 
been the cause of sufficient mischief." 

Notwithstanding this, he said to me, that in order to avoid all conflict 
for the future, and in case — which was not a probable occurrence — the 
" Crescent City" whose departure from New York was announced for 
the 27th, should have those individuals on board, he begged that I 
would have the condescension to allow, for this time only, the passen- 
gers and the mail to land, although I should prohibit the crew, com- 
prising the persons in question, from landing likewise, because, in doing 
50, I would not only prevent any injury being done to commerce and to 
the passengers, but that I would lessen the embarrassment which these 
occurrences were occasioning to his government. Mr. Conkling being 
entitled to some civility, on account of your excellency's especial 
recommendation, and even to my sympathy for his judicious and up- 
right deportment during his interviews with me, and with a view, also, 
of not increasing the difficulties which at this moment harass the worthy 
President Fillmore, I promised that his wishes should be complied 
with ; but I took good care to remark to him, that neither Captain Por- 
ter nor Purse]- Smith would be allowed to land at Havana — that my 
agreement to allow the mail and passengers to land would be for this 
occasion only, in case the government should not have had time to 
forward instructions in relation to them ; and that after that, I should 
enforce my original measures, adopted, as they have been, after a tho- 
rough examination of what it behooves me to do for the security of the 
island, and in virtue of the indisputable rights with which the authority 
I exercise has been invested. 

The Hon. Mr. Conkling evinced his appreciation of the act by many 
expressions of gratitude, and went away from me satisfied, and yester- 
day he sailed once more for his destination. 

In thus making your excellency minutely acquainted with what has 
passed, I desire, in the first instance, to show my respect for the actual 
government of the United States, my deference for an old and respected 
diplomatic functionary, who has come here, in a confidential mauner, 
to obtain a thorough knowledge of the disagreeable occurrences of the 
past, and finally to make known that if the Mail Steam Company, abu- 
sing my forbearance in these considerate proceedings, should again 
send to this place the persons who have been the cause of these lament- 
able evils, I shall be compelled to sustain the dignity which has been 
conferred upon me by her Majesty the Queen, by positively prohibit- 
ing the entrance into this port of the " Crescent City." 

God preserve you, &c. 

VALENTIN CANEDO. 

The Most Excellent 

Minister Plenipotentiary and Envoy Extraordinary 

of her Majesty in Washington. 



CASE OF THE BLACK WARRIOR, ETC- 35 

Mr. Sharkey to the Secretary of State. 

[Extracts.] 

[No 19.] Consulate of the United States, Havana, 

November 8, 1852. 

Sir : During my absence Mr. Morland kept you advised of the con- 
dition of our relations with this island. Having no dispatches to reply 
to, I can only inform you what has occurred since my return on the 
30th ultimo, which was duly announced to you. On my arrival Mr. 
Morland informed me that Judge Conkling, our minister to Mexico, 
had called here on the business of the difficulty with the steamer Cres- 
cent City, and that a temporary arrangement had been entered into 
betwen the Judge and the Captain General, by which that vessel should 
be permitted to land her mails and passengers and receive others, but 
that neither Captain Porter nor Purser Smith should be permitted to 
land. This arrangement, however, was understood to be but a suspen- 
sion of the prohibition which had existed towards that vessel. The 
Crescent (Jity arrived in this harbor on the 2d instant with Purser 
Smith on board, under the command of H. R. Davenport, esq., and was 
permitted to land her mails and passengers. Soon after her arrival I 
had the honor of an interview with the Captain General, in which his 
excellency stated to me the purport of the agreement with Judge Conk- 
ling, but said it only extended to the present visit of the ship, and that, 
as Purser Smith was still on board, she could not be allowed a similar 
privilege on her return from New Orleans, unless he could be assured 
that Smith should not be in her. His excellency expressed much sur- 
prise that the purser was still retained, after the assurances given by 
the Secretary of State to the Spanish minister at Washington. He 
stated to me that he had received a communication from the Spanish 
minister to this effect : that the Secretary of State had assured the min- 
ister, in the most positive terms, that Smith should not return on the 
vessel, and authorized the minister to make that statement known to 
the Captain General. This letter was exhibited, and that portion of it 
translated by my secretary. Deeming this fact one of importance, I 
forwarded a statement by the Crescent City, to be communicated to 
you by telegraph from New Orleans. I was not prepared to reply to 
this intelligence, and could only suggest to his excellency that probably 
Smith was not an officer of the government, and therefore not subjected 
to its control, which I afterwards learned to be true, as he was there by- 
contract with the owner of the vessel. I informed Captain Davenport 
of what had occurred, and stated to him what might be expected on 
his return. I cannot be positively certain whether his excellency said 
the ship should not enter the harbor, or only that she should hold no 
communication with the shore. My secretary is under the impression 
that he only intended to interdict communication with the shore. The 
difference, however, seems to be of little consequence. This affair has 
produced a very unpleasant state of things, and I have only to hope 
that the government will give it prompt attention. 

* * *-# * * * # # 

I herewith forward a copy of a letter from Mr. Morland to the com- 
mander of the Crescent City, and one from Mr. Morland to me, to- 



36 CASE OF THE BLACK WARRIOR, ETC 

gether with a note from the Captain General. I had not time to pre- 
pare this dispatch to be forwarded via New Orleans by the Crescent 
City, but avail myself of the earliest opportunity which will be afforded 
by the Black Warrior. 

I have the honor to be your obedient servant, 

W. L. SHARKEY. 
To the Hon. Secretary of State 

of the United States. 



Consulate of the United States, Havana, 

November 1, 1852. 

Sir : I have to advise you that Judge Conkling, who called here on 
the business of the steamship " Crescent City," has come to an under- 
standing with the Captain General on the difficulties lately existing in 
relation to that ship, which is arranged so that that vessel may enter 
port, deliver her passengers and mails, receive others in feturn, and 
proceed as usual heretofore ; but that Captain Porter and William 
Smith, esq., shall not land here. I give you this information for your 
government ; and am 

Your most obedient servant, 

JNO. MORLAND, Acting Consul 
To the Commander 

of the United States Mail Steamer "Crescent City.'''' 



Havana, November 4, 1852. 

Dear Sir : In answer to your note of this morning, I have to say 
that I had no occasion, and therefore did not see his excellency the 
Captain General after the departure of the Powhatan, and therefore did 
not receive from him anything on the subject relative to the " Crescent 
City ;" but Judge Conkling informed me that he had arranged the mat- 
ter with the Captain General, and that the " Crescent City" was to be 
admitted with Captain Porter and Mr. Smith on board, who were not 
to land, but that the mails and passengers were. He added that it 
was a suspension of his former order, but named no limits. 

I remain yours, 

JNO. MORLAND. 

Hon. Judge Sharkey. 

P. S. — Judge Conkling said that the Captain General •had suggested 
the necessity of writing a letter, or rather that Commodore Newton 
should do so, to Captain Porter, to be delivered to him, explaining the 
arrangement, which was not done, as I understand from the harbor- 
master. 



CASE OF THE BLACK WARRIOR, ETC 37 

[Translation.] 

Havana, November 2, 1852. 
[seal.] 

To the captain of this port I have said, under yesterday's date, the 
following : 

" In view of the friendly explanations that have been given me, when 
he touched at this port, by Mr. Conkling, minister plenipotentiary of the 
republic of the United States near Mexico, for the remote case that the 
steamer ' Crescent City' might still make one voyage, having on board 
Mr. Porter as captain, and Mr. Smith as supercargo, that I should 
condescend to permit the landing of her passengers and mails, I have 
deemed it proper to accede to his wishes, as a proof of consideration to 
his person and to the respectable recommendations he was the bearer 
of. You will, therefore, should the case referred to occur, which is not 
probable, allow the passengers and mails to land, but with the express 
prohibition that it should be done by Smith or Porter, whose conduct I 
have qualified as notoriously suspicious for the security of this island ; 
and I must add to your lordship that this concession is understood to 
relate only to the next voyage of the said steamer." 

And I communicate it to your lordship for your information, and the 
effects it may be useful for. 

God preserve your lordship manv years. 

VALENTIN CAfiEDO. 

Sefior Consul of the United States in this place. 



Mr. Everett to Mr. Maxwell. 

Department of State, 

Washington, November 13, 1852. 

Sir: Official information has been received at this department that 
there is a law or regulation of the island of Cuba forbidding the en- 
trance of any vessel into the port of Havana after nightfall, and before 
a certain hour in the morning ; and that it is the duty of the officers sta- 
tioned in the Moro oastle to fire upon any vessel attempting to enter the 
port in violation of this regulation or law. On the occasion of the ar- 
rival of the " Crescent City," on the 14th ultimo, she entered the port 
within the prohibited hours, notwithstanding, as is alleged, that she was 
hailed three times, and required to desist. 

The sentinels, whose particular duty it was to fire upon a vessel 
under these circumstances, have been imprisoned for failing to perform 
their duty on this occasion ; and the Governor General of the island 
informed Mr. Conkling, the American minister to Mexico, on his visit to 
the island, that he had given peremptory orders, that should an attempt 
again be made by the commander of the " Crescent City" to enter the 
port of Havana at an unlawful hour, she should be fired upon from the 
Moro. The President requests that you would bring these facts to the 
knowledge of the owners of the " Crescent City." 



38 CASK OF THE BLACK WARRIOR, ETC 

I am also directed to inform you that the Spanish minister has com- 
mtnicated to the department a copy of a letter from the Governor Gen- 
eral of Cuba to himself, from which it appears that the suspension of 
the order of the Governor General, forbidding the*entrance into the port 
of Havana of the " Crescent City," if Lieutenant Porter or Purser 
Smith should be on board, was not designed by the Governor General 
to be a permanent suspension, as understood by Mr. Conkling, but to 
apply only to the then next expected arrival of that vessel. You will 
also be pleased to inform the owners of this,correspondence. 

I am, sir, &c, &c, 

EDWARD EVERETT. 
Hugh Maxwell, Esq., 

Collector of the Customs at New York. 



Mr. Everett to Mr. Calderon. 

Department of State, 

Washington, November 15, 1852. 

Sir : You have already, I believe, been informed that this department 
had reason to think that the information received by the Governor 
General of Cuba, relative to Purser Smith of the "Crescent City," was 
erroneous. To show you, in a perfectly satisfactor} r and authentic 
manner, that such is the fact, I take the liberty to enclose you a copy of 
an affidavit made by Mr. Smith, in which he disclaims, in the amplest 
terms, everything that has been laid to his charge. A copy of this 
document has been already transmitted to Mr. Barringer, to be commu- 
nicated to her Majest}r's government. 

In the mean time, as the sole objection to the abrogation of the order 
of his excellency the Governor General, of the 4th September, is under- 
stood to be the want of a personal assurance on the part of Mr. Smith 
that he is entirely innocent of the matters laid to his charge, I persuade 
myself that your excellency, by communicating this document to the 
Governor General, will enable him, without delay, to restore the inter- 
course with the island to its accustomed amicable footing. 

I avail myself of this occasion, sir, to renew to. you the assurance of 
my distinguished consideration. 

EDWARD EVERETT. 

Sefior Don A. Calderon de la Barca, 

fyc, Sfc., &fc 



Mr. Kennedy to Mr. Everett. 

Navy Department, 

November 16, 1852. 
Sir : In compliance with the request contained in your communica- 
tion of 13th instant, to be furnished with a copy of the statement of 
Captain Porter, of the United States mail steamer Crescent City, rela- 



CASE OF EHE BLACK WARRIOR, ETC 39 

tive to his conduct in the recent refusal of the Spanish authorities of the 
island of Cuba to permit that vessel to land her passengers or mail at 
the port of Havana, I have the honor to transmit herewith an additional 
copy of said statement, it being the third which has been furnished by 
this department. 

I have the honor to be, sir, with high respect, &c, 

JOHN P. KENNEDY. 
Hon. Edw. Everett, 

Secretary of State. 



Saturday, October 24, 1852. 

Sir : Agreeably to your order, "that I should communicate to you in 
writing a statement of the events which lately took place in Havana 
in relation to the steamship Crescent City," I have^the honor to give 
herein a detailed statement of facts as they occurred : 

I sailed from New York on the 27th of August for New Orleans, via 
the Havana, anticipating no difficulty of any kind, and arrived in 
Havana on the 3d of September ; was boarded by the health officer, 
custom-house officer, and police officers, who examined the passports, 
and the ship admitted all the privileges of the port ; two hours after 
I anchored, and while asleep in my cabin, one of the police officers 
entered my room, and informed me that it was the Captain General's 
order that Mr. Smith, purser of the ship, should not be permitted to go 
on shore. Not being perfectly awake at the time, I did not ask the 
reason why Mr. Smith could not go on shore, but simply replied that I 
would attend to it. I accordingly gave Mr. Smith an order not to go 
on shore, intending to obtain further information on the subject ; but 
the ship's sailing soon after, drove the matter from my mind. On my 
arrival at New Orleans, I saw an extract from the " Diario de la 
Marina," (the government paper,) accusing Mr. Smith of writing 
calumnies against the Captain General, and accusing him of having 
written them over his own signature. This explained to me the cause 
of Mr. Smith's not being permitted to go on shore. I returned to 
Havana on the 14th of September, and after being at anchor for a 
short time, the captain of the port came alongside in the health boat, 
and after the usual courtesies were passed, the captain of the port 
desired to see our shipping articles, which I ordered Mr. Smith to bring- 
to me : after looking down the list, the captain of the port came to Mr. 
Smith's name, and in rather an irritable manner ordered the person to 
be kept on board the ship. I asked of what particular offence he had 
been guilty. He replied, in a passionate manner, that he could not go 
on shore. 

I informed him that the order should be obeyed, and asked him it he 
had any further commands. He said* he would like to see Mr. Smith; 
the latter person was alongside of me at the time, and I pointed him 
out, when the captain of the port, in a great state of excitement, not at 
all called for by the occasion, called up the police boat, and in a loud 
voice ordered the police officer to " mark Mr. Smith," meaning, to 
notice him well. I asked if he desired anything further with Mr. 



40 CASE OF THE BLACK WARRIOR, ETC- 

Smith, and on receiving a negative reply, I retired up the ship* side, 
somewhat astonished at the injustice and want of courtesy of Spanish 
officials. One hour after this occurred, I received a communication 
from the house of Drake, enclosing an order from Martin Galliano, the 
political secretary, informing me that no vessel belonging to the com- 
pany would be permitted to enter the port of Havana with Mr. Smith 
on board, or any other person who made use of his position in the line 
to write abusive articles against the Captain General, and informing 
me, at the same time, that a police officer would be detailed on board 
the " Crescent City" to watch over Mr. Smith. I immediately wrote 
to Mr. Drake, and assured him, on the honor of an officer, that Mr. 
Smith had never written or composed any article against the Captain 
General in the newspapers of the United States. I informed them, at 
the same time, that under the circumstances of the case, I would not 
permit any police officer to remain on board the ship for the purpose of 
taking charge of any officer ; that I intended to sail at 4 o'clock, and 
that they would be held responsible if they attempted to prevent me. 
I sailed at the usual hour without molestation, and concluded that my 
disavowal had been satisfactory. On my return to New York I laid 
the matter before the company, assuring them at the same time that 
Mr. Smith was perfectly innocent of the accusation, and explained to 
them how the charge against Mr. Smith originated, viz : from the accu- 
sation of the correspondent of the " Diario de la Marina." I beg leave 
to state here that Mr. Smith is an old man, sixty years of age, and is 
retained in his position more owing to his great integrity of character, 
than from any abilities he may possess for the arduous and intricate 
duties of his station. It was at my solicitation that he was originally 
ordered to the " Crescent City," and I desired to have him from the 
fact that he attended solely to his own duties, meddling with nothing 
which did not relate to them, and assumed no responsibility without 
consulting me. 

I sailed again from New York on the 27th September, and arrived 
at Havana on the evening of the 3d of October ; it was blowing a gale 
of wind at the time ; and as I knew no boat could come far enough 
outside to us to get a pilot from, I made no signal for one, but stood 
into the harbor. Near the mouth of the harbor the pilot was waiting 
for us ; I ran close to him, slowed the engine, and hove him a rope, 
but, owing to the high sea, he failed to get hold of it. Close to the 
pilot boat, and fast to the buoy, was the health boat, inside of which 
I recognised the captain of* the port, who made signal to me to back 
out, which signal I paid no attention to. As I passed him he ordered 
me " to stop the ship," which I refused to do, as it was a very danger- 
ous place to stop a ship in, and within fifty feet of a reef of rocks on 
our lee-beam. 

I accordingly proceeded to my usual anchorage within. I was fol- 
lowed by the captain of the port ; when he came alongside, he de- 
manded why I did not stop the ship at the mouth of the harbor when 
he ordered me. I replied, that it was not a proper place to stop a ship 
in, especially a steamer with a single engine. The explanation seemed 
satisfactory. He then demanded to see the ship's articles ; and on 
seeing the name of Mr. Smith, he told me to proceed to sea at once, 



CASE OF THE BLACK WARRIOR, ETC 41 

by the Captain General's order. I asked him if he had not received my 
letter disavowing the charge made against Mr. Smith ; he said yes, that 
the letter had been received, but that I must go to sea at once. I told 
him I must make my protest to the American consul, and I refused to 
lift my anchor until I had done so. After some discussion, the captain 
of the port concluded to take my protest to the Captain General; but it 
was returned to me again, with a message that it must be sent through 
the consul. I accordingly sent it to the consul by our agent, who was 
permitted to come alongside to get the communication. After sunset, 
the captain of the port again came alongside, and informed me that 
the consul was some distance out of town, that the Captain General 
had not time to answer my communication that night, and. that I must 
proceed to sea at once. I represented to him the great responsibility 
of so treating a ship on such frivolous charges, pointed out to him the 
breach of faith with the passengers who came to Havana with pass- 
ports from the Spanish consul at New York, and also the inconvenience 
to the community from the non-deliverance of the mails. I received 
no satisfaction on these points. My mails and passengers were refused ; 
and finding no hopes of communicating with the consul, I proceeded to 
sea, with every appearance of a gale of wind, and blowing so fresh at 
the time in the harbor that I had to cut the cable by which the vessel 
was secured to the buoy, as thejr offered me no assistance to cast it off. 
A pilot was offered me, but I declined it. 

Previous to my sailing from New Orleans, I received instructions 
from the company's agent, by telegraph, to proceed to Havana and offer 
the mails; and if they were refused, to extend my protest and return 
to New York without delay. 

I accordingly proceeded to Havana, where I arrived on the 14th of 
October, at daylight, was permitted to enter, and anchored in my 
usual place. The captain of the port came alongside, and on finding 
Mr. Smith on board, informed me that the vessel was " incommuni- 
cado ; " that is, not allowed communication ; that we would not be turned 
out of the harbor, but that no intercourse of any kind would be allowed. 

I requested permission to send a protest to the consul, which was 
positively refused. We were then surrounded by guard-boats, and I 
ordered the steam to be let off, intending to remain some time to see 
what turn matters would take. Seeing that I had no intention of going 
to sea, two guard-boats were detailed from a frigate, preventing the 
approach of any boats towards the Crescent City. At 9 o'clock, Mr. 
Morales, of the house of Drake & Co., came alongside. I informed 
him that I had letters for him from the company, which ought to satisfy 
the Spanish authorities, but that I was not to deliver them. He asked 
me if I had made an explanation. I told him yes, and assured him 
that Mr. Smith was perfectly innocent of any offence, of which opinion 
he was himself. He then suggested that Mr. Smith should write direct 
to the Captain General, denying the charges against him. He said no 
official communication had been made to the Spanish government. I 
told him that I had made an official communication, which had received 
no attention. He said my communications were not considered official, 
but that from Mr. Smith would be. 

I told him that my instructions were to present a protest, which was 



42 CASE OF THE BLACK WARRIOR, ETC. 

all I desired to do, and that I thought the protest would satisfy them 
on all points, as I had stated plainly all the grounds of complaint, and 
again disavowed the offence on Mr. Smith's account, or rather referred 
in it to my two former disavowals. This Mr. Morales seemed satis- 
fied with, and proceeded to the shore, where, through his influence, the 
American consul was permitted to come alongside, in charge of the 
captain of the port, accompanied by an interpreter. I presented my 
protest to him in person, and he advised me to go to sea at once, as 
nothing more could be done with the authorities. I accordingly got 
under way at once, and proceeded to sea ; hoisted the American flag 
at the fore, and fired a gun as I passed the Moro. 

These are the exact circumstances connected with the matter. Of 
course, sir, I cannot describe the feelings or the expression of the dif- 
ferent parties, which add weight to circumstances of this kind. Suf- 
fice it to say that the conduct of the Spanish authorities was unfriendly 
in the extreme. The conduct of officials, it is true, was more cour- 
teous towards the last ; but it could not have been otherwise with people 
boasting of anything like civilization, for my conduct towards them 
throughout the whole difficult}', until I got under way, was courteous 
and respectful in the extreme, as I determined to give them no cause 
of complaint. 

I have herein confined myself to the simple facts ; but will take 
this occasion to say that I have always been instructed by the company 
to cultivate the most friendly feelings with the Spanish authorities; and 
I take pleasure in saying that I believe, up to the present time, I have 
succeeded in accomplishing the task imposed on me ; for, in the trying 
and exciting times of the Lopez expedition, it required almost super- 
human patience to submit to all their uncalled-for exactions. 

I have the honor to remain, very respectfully, your obedient servant, 

DAVID D. PORTER, 

Lieutenant U. S. Navy. 

Hon. J. P. Kennedy, 

Secretary of the Navy. 



[Translation.] 

Havana, September^, 1852. 

An individual named William Smith, who it appears is employed on 
board the steamship " Crescent City," has published, on his last voyage 
to New York, the most gross calumnies against the government of this 
island, and has taken advantage of the frank hospitality that is ex- 
tended to all foreigners, to give the greater appearance of truth to his 
falsehoods. 

This conduct, which the whole world will be able to quality with its 
true colors, has attracted very seriously the attention of his excellency 
the Governor Captain General, whose elevated position places him so 
high above all such vile attacks against his administration, that he will 
not stoop for a moment to refute them ; but he considers it a duty to 
make the author feel that the government will not permit such acts to 
be committed with impunity. 



CASE OF THE BLACK WARRIOR, ETC 43 

In consequence thereof he has given orders that, on the instant 
arrival of the Crescent City in this port, there will be placed on board 
an agent of the police, with the exclusive charge of Mr. Smith, to pre- 
vent him from leaving the ship ; and the order of his excellency is 
transmitted to you, prohibiting in future the return of this individual in 
any of the company's ships, or any other person who will lend himself 
to abuse the frankness which the Spanish authorities offer in the ports 
of the island. The fact of such persons being on board will be suffi- 
cient to prevent the entrance of the vessel into the harbor — no matter 
how much the interests of the company may be affected or injured by 
the proceeding. 

They have it in their power to prevent abuses b} r their subordinates ; 
their honor and their interests should make- them withdraw their confi- 
dence from persons who compromise them by their conduct. 

M. GALLIANO. 



New York, September 19, 1852. 

Sir : I enclose you a communication I received from Messrs. Drake 
and company. I translate it from the original. 

You will see that Mr. Smith . is accused of writing injurious reports 
against the Spanish government. I assure you that Mr. Smith has 
never written a line against them ; and the whole thing has originated 
in the correspondent of the "Diario de la Marina," a Spanish paper, 
in which Mr. Smith's name is put to the letter of somebody else. 

I enclose you also my letter in reply to the communication and re- 
fusing to have a police officer on board to take charge of any of the 
company's officers. 

They acted be3^ond their authority, aud they know it. The}' have 
once or twice attempted arbitrary measures with me, which I consid- 
ered it best for the interests of the company to prevent by a firm and 
decided refusal to submit ; and I never had cause to regret the course 
I pursued, as I have felt the benefit of it in not being subjected to petty 
annoyances which have been put upon other ships. Never having had 
any instructions from the company on the subject I acted as my reason 
dictated. 

Very respectfully, &c, 

DAVID D. PORTER, 

Lieutenant TJ. S. Navy. 

M. O. Roberts, Esq., 

Agent U. S. Mail Steamship Company. 



Office of the U. S. Mail Steamship Company, 

New York, September 27, 1852. 

Dear Sir : Your letter of the 19th inst., enclosing a communication 
from Messrs. Drake & Co., with a manifesto from the authorities of 
Havana, translated by yourself, and a copy of your replies thereto, was 
duly received. 



44 CASE OF THE BLACK WARRIOR, ETC 

Being satisfied that Mr. Smith, purser of the Crescent City, has done 
nothing which ought to subject him to censure, this company approves 
fully of your course in relation to the matter while at Havana, and of 
the tenor of your reply, through Messrs. Drake & Co., to the Cuban 
authorities. 

Mr. Smith, so far as I can ascertain, has written nothing for any 
newspapers here or elsewhere, nor communicated anything at any time 
that ought to give offence to the Spanish authorities ; and the allegation 
that he has done so I am satisfied is a mistake or a misrepresentation. 
He ought not to be held responsible for the newspaper publications, 
which are generally the repetitions of what the news collectors obtain 
from other sources, with such additions and comments as they choose 
to make, and which are entirely beyond the control of this company or 
of any of its agents or officers. 

Mr. Smith is one of our most quiet, inoffensive, and faithful officers ; 
and we ought not to consent to remove or discharge him when satisfied 
that he is innocent of any attempt to interfere with the Cuban govern- 
ment or to misrepresent it. 

It has always been the policy of this company to avoid giving any 
offence by any interference in the affairs of other governments. They 
have uniformly so instructed all their commanders and officers of their 
ships, and I am happy to believe that such instructions have been most 
satisfactorily carried out. 

Employed by the government of the United States in the transporta- 
tion of its mails, it has been felt to be the duty of the company, and of 
the commanders of their ships, while they were careful to protect their 
agents and employes in their persons or property from undeserved sus- 
picion, to impress upon them the necessity of avoiding any interference 
in the affairs of the government of Cuba or the authorities of Havana, 
or of affording any ground of complaint on their part. This I take the 
occasion to repeat for the government of your own course and for that 
of the officers and those under your command. 
Very respectfully, yours, &c, 

M. O. ROBERTS. 

Captain D. D. Porter, 

Commanding Steamship Crescent City. 



United States of America, 

Southern District of New York. 
I, William Smith, purser of the United States mail steamship Cres- 
cent City, being duly sworn, depose and say that the allegation con- 
tained in a certain order or manifesto, signed "M. Galliano," an officer 
of the government of the island of Cuba, and dated at Havana, the 
4th day of September, 1852, and repeated in the official paper at 
Havana, that I had " published the most gross calumnies against the 
government of said island," and the further allegation, which I under- 
stand has been made unofficially to the government of the United 
States, that I had held communication with disaffected persons in the 
port*of Havana, in the island of Cuba, and had been the bearer of 



CASE OF THE BLACK WARRIOR, ETC. 45 

• 

letters or messages to and from such persons, are all utterly without 
foundation. I have never written or published anything against the 
government of the said island of Cuba; nor have I ever carried letters 
or messages to and from disaffected persons in said island, or had any 
communication with such persons, or in any manner interfered with the 
affairs of the said island, or the proceedings of its authorities. I have 
confined myself strictly to the discharge of the duties of purser of the 
ship, and have demeaned myself accordingly. Furthermore, it has 
been the express command of Capt. Porter, and of the Mail Steam- 
ship Company, that no officer or person employed on the ships should 
be allowed to carry letters outside of the mail, other than those belong- 
ing to the ship's business ; and when letters have been sent on the 
steamer after the mails have been closed and received on board, they 
have been placed in the charge of the purser, and in all cases delivered 
to the postmaster in Havana. I also further depose and say, that I 
have never been in any manner connected with any association or ex- 
pedition for hostile purposes, in relation to the island of Cuba, or for 
annoying, assisting, or interfering with its authorities. 

WILLIAM SMITH. 

Sworn to the 21st day of October, 1852, before me. 

JOSEPH BRIDGHAM, 

U. S. Commissioner Southern Dist. of New York. 



New York, October 27, 1852. 

Sir : I have the honor to enclose to you the communication from Mr. 
Galliano, the letter I received from the company on my last trip to 
Havana, and a copy of an affidavit (the original is sent to the Hon. 
Secretary of State) made by Mr. Smith, denying every species of 
charge brought against him. I also enclose you two articles cut from 
the Herald, which are the only articles relating to Cuba to be found in 
the papers at that time. They are evidently the articles alluded to by 
the correspondent of the government paper, and it will be seen at once 
that one is an editorial notice, and the other a letter from some one in 
the Havana. 

I have the honor to remain, very respectfully, &c, 

DAVID D. PORTER, 

Lieut. V. S. Navy. 

Hon. J. P. Kennedy, 

Secretary of the Navy. 



Mr. Calderon to Mr. Everett. 

[Translation.] 

• Washington, November 17, 1852. 

The undersigned has had the honor to receive the communication 
addressed to him by the Secretary of State under date the 15th inst., 
accompanied by a copy of the deposition, under oath, of Purser Wil- 



46 CASE OF THE BLACK WARRIOR, ETC. 

liam Smith ; arid will transmit a copy of both documents to the Cap- 
tain General of Cuba by the next opportunity, that of the steamer 
Ysabel, which will start from Charleston on the 22d instant. 

The undersigned begs the honorable Edward Everett to accept the 
assurances of his most distinguished consideration. 

A. CALDERON DE LA BARCA. 

Hon. Edward Everett, &c, &c, &c. 



Mr. Sharkey to Mr. Everett. 

[No. 20.] Consulate of the United States, Havana, 

November 17, 1852. 

Sills. : Since my dispatch No. 19, of the 8th inst., I have to inform 
you that the steamer Crescent City, from New Orleans, arrived in this 
port yesterda\\ Notwithstanding the previous determination of the 
authorities here that she should hold no communication with the shore, 
the order was again suspended, and free communication was allowed 
her. The captain of the port, however, informed Capt. Davenport 
that she would positively be excluded on her return from New York, if 
Purser Smith should be on board. In addition to this, the Captain 
General has made a written communication to the same effect to the 
house of Drake & Co., the consignees, a translated copy of which I 
herewith forward. A copy of that communication was also handed 
to Capt. Davenport, as I understand. I must presume this order will 
be enforced. It is hoped that prompt attention will be given to this 
matter ; and, if I may be allowed to make a suggestion, it seems to me 
that the most decisive policy is required with this people, if we wish 
to avoid like difSculties hereafter. There is no abatement in the ex- 
citement which prevails here since my last dispatch. On the contrary, 
late events seem to have increased it. The condition of things is 
quite unsettled, and commerce much depressed in consequence of it. 
I am yet without advices from the government ; and it is proper for me 
to say, that I have made no efforts to induce the Captain General to 
recede from his position in regard to the Crescent City, as I saw nothing 
that could justly call for such intercession on my part. 

I have the honor to be, with great respect, vour obedient servant, 

WM. L. SHARKEY. 

Hon. Edward Everett, 

Secretary of State of the United States. 



[Translation.] 

Political Secretary's Office, 1st Section. 

Havana, November 16, 1852. 

Notwithstanding that there remains in full force aqd vigor the order 
of his excellency the Governor Captain General, which I communi- 
cated to you on the 4th day of September last, to the effect that the 
return to this island of Mr. William Smith, an employe of the Ameri- 



CASE OF THE BLACK WARRIOR, ETC. 47 

can steamer Crescent City, and the entrance of this vessel in the port, 
should she convey him, was forbidden, as a doubtful interpretation 
might be given to the special concession that his excellency has made 
on the last voyage of said vessel to New Orleans, and on that of 
her return to this port, which she has to-day effected — a concession 
founded on special reasons, of which his excellency the • minister 
plenipotentiary of her Majesty in Washington has knowledge — his 
excellency instructs me to say to you that, in future, the order afore- 
said will be enforced ; to the end that, being informed, as you now are, 
of this particular, you make it known to whom it may concern, and 
avoid that, in consequence of a bad understanding, third persons be 
injured. 

God preserve vou manv vears. 

MARTIN GALLIANO. 

Messrs. Drake & Co., 

Consignees of the American Steamer Crescent. City. 



Mr. Sharkey to the Secretary of Slate. 

[By telegraph.— Dated Havana, Nov. 17, 1852; received at Washington Nov. 27, 1852.] 

To Honorable Secretary of State : 

The steamer Crescent City was permitted to have free intercourse 
with the shore, but will be positively excluded on her return from New 
York. An order to that effect has been given to Captain Davenport 
by the captain of the port ; and also a written notice to the consignees 



from the Captain General. 



W. L. SHARKEY, 

Consul United States. 



Mr. Everett to Mr. Sharkey. 

[No. 18.] Department of State, 

Washington, November 30, 1852. 

Sir : Your several dispatches to No. 20 have been duly received. 
You will have derived from public sources of information a knowledge 
of passing events. 

It has been a matter of extreme regret to the President that the com- 
mercial intercourse between the island of Cuba and the United States 
should be interrupted by a misunderstanding like that which at present 
exists. The President does not question the right of the Captain Gen- 
eral to prohibit the entrance into the island of any person whose pres- 
ence he may think dangerous. That right, of course, ought to be ex- 
ercised on reasonable grounds. Tn the present case the Governor 
General seems to have acte'd on misinformation ; the purser of the 
"Crescent City" having made affidavit that he is entirely innocent of 
the matters laid to his charge. I placed a copy of this affidavit in the 



48 CASE OF THB BLACK WARRIOR, ETC 

hands of Mr. Calderon, the Spanish minister here, and it was for- 
warded by him to the Captain General by the Isabel steamer, which 
sailed on the 20th. 

If it is true, as we have been informed, that the Governor General 
has offered to revoke his order of the 4th of September relative to Par- 
ser Smith, provided he would disclaim the authorship of the calumni- 
ous articles laid to his charge, this affidavit would seem entirely to ful- 
fil that condition. Mr. Calderon shares this opinion ; and I cannot but 
think, that in furnishing the Governor General with a copy of the affi- 
davit alluded to, this government has afforded to him ample ground for 
rescinding the above-mentioned order without discredit ; in fact, that 
justice requires him to do so. 

With respect to the refusal to permit passengers or the mail to be 
landed from any vessel having Purser Smith on board, or even to per- 
mit it to enter the harbor, the President considers that, the Captain 
General has gone far beyond any necessity of the case, and has conse- 
quently taken a step of which this government has a right to complain. 
It wears the aspect of a purely vindictive measure, inflicting an injury 
on parties in no degree implicated in the supposed offence. The Gov- 
ernor General would be authorized by the law of nations to forbid the 
landing of the passengers and the mails from the United States if he 
thought them dangerous to the public safety of the island ; but that he 
entertains no such apprehension is sufficiently apparent from the fact 
that this prohibition is extended to no other steamer, and has even been 
repeatedly relaxed in favor of the vessel having Purser Smith on 
board. 

The President has accordingly felt it his duty to direct our minister 
at Madrid to address an earnest remonstrance to the government of her 
Catholic Majesty, on the subject of an interruption of the commercial 
intercourse between the island of Cuba and the United States, for a 
reason so entirely inadequate ; and he entertains no doubt that due re- 
gard will be paid by the government of her Catholic Majesty to these 
representations. 

The President strongly disapproves the course of the steamer com- 
pany in persisting in sending a person in a mail steamer whose pres- 
ence they are assured will prevent the mails from being received. He 
considers this course unwise in itself, and calculated only to embarrass 
the government in the discharge of its duties. An order has accord- 
ingly been given to the postmaster of New York not to furnish the mails 
to be carried by any steamer subject to this prohibition. 

We are quite aware, of course, that no diplomatic relations exist be- 
tween yourself and the Captain General. As you have, however, 
occasional opportunities of informal conference with him, you are at 
liberty to make any use of the information contained in this letter 
which you may think calculated to remove the existing inconveniences. 
I am, sir, &c, 

EDWARD EVERETT. 

Wm. L. Sharkey, Esq. 

United States Consul, Havana. 



CASE OF THE BLACK WARRIOR, ETC. 49 

Mr. Sharkey to Mr. Everett. 
[Extract.] 

Consulate of the United States, 

Havana, December 1, 1852. 

Sir : Being without dispatches to reply to, I have only to inform you 
of events that have transpired since my dispatch of the 17th ultimo. 
The difficulty which heretofore existed in reference to the steamer 
Crescent City seems to be ended. The Captain General has issued an 
order, founded on dispatches received by him from the Spanish minis- 
ter at Washington, that all obstacles in the way of her landing have 
been removed. 

With great respect, 3 T our obedient servant, 

W. L. SHARKEY. 
Hon. Edward Everett, 

Secretary of State. 



Mr. Everett to Mr. Barringer. 

[No. 66.~\ Department of State, 

Washington, December 4, 1852. 

Sir : I transmit herewith a copy of a note addressed by me, a short 
time since, to the Spanish minister here, enclosing a copy of the affi- 
davit of Purser Smith. I also transmit, for your information, a copy of 
a letter to Mr. Sharke}^, consul of the United States at Havana. 

I have the satisfaction to inform you that telegraphic messages were 
received last evening, from Baltimore and New York, conveying the in- 
formation that the affidavit of Purser Smith had been deemed satisfac- 
tory by the Captain General of Cuba, and that he had withdrawn the 
order prohibiting passengers and the mail to be landed from any vessel 
having him on board. 

The President recognises with pleasure this proof of the desire of 
the Captain General to relieve the commercial intercourse between 
Cuba and the United States from the embarrassment growing out of 
this unfortunate affair. 

While the President does full justice to the conciliatory temper mani- 
fested by the Captain General in .withdrawing the prohibition, and is 
also duly sensible to the liberal treatment extended generally b}^ the 
Captain General to the mail steamers of the United States, he remains 
of the opinion originally expressed in the dispatch of Mr. Secretaiy 
Conrad of the 28th of October, that the course at first pursued by the 
Captain General in this unpleasant affair was matter of just complaint 
on the part of this government. 

In your communications with the government of her Catholic Majes- 
ty, } T ou will not fail to impress them with a due sense' of the firmness 
and good faith with which the President has resisted the spirit of un- 
lawful adventure against the island of Cuba. As a striking proof of 
4 



50 CASE OF THE BLACK WARRIOR, ETC 

this, I enclose you a copy of a private letter reeently addressed by him 
to the collector of New York. T send it, for convenience, in a printed 
form. 

1 am, sir, respectfully, 5'our obedient servant, 

EDWARD EVERETT. 
D. M. Barringer, Esq., &fc, fyc, 

Madrid. 



Washington, November 12, 1852. 

Your note of yesterday came to hand this morning, in which you 
state a conversation you have had with Mr. George Law, from which 
you learned that the " Crescent City will go to Cuba and enter the port 
of Havana in defiance of the Spanish authority ; and, if fired upon, she 
will be surrendered, and that then he and others will immediately com- 
mence hostilities against the island." You say, also, that " he desires to 
know whether he is right in persisting in the pursuit of his lawful busi- 
ness ; and that if the government shall tell him he must not go, he will 
not go. If, however, the government says nothing against his going, 
he will infer he has a right to go." You say, also, that " he professes to 
be friendly to me and my administration." Of the sincerity of this 
latter profession, one can best judge by reading his letter of the 9th, 
published in the New York Herald of the 10th instant. 

But, in regard to the chief matters of your letter, permit me to say, 
that, in the first place, I do not admit the right of Mr. Law, or any other 
citizen, to threaten a war on his own account, for the purpose of seek- 
ing redress for real or imaginary injuries, and then to call upon the gov- 
ernment to say whether it approves or disapproves of such conduct, 
and assume its approbation unless the act is forbidden. The Constitu- 
tion of the United States has vested in Congress alone the power of de- 
claring war, and neither the Executive branch of the government nor 
Mr. Law has any right to usurp that power by commencing a war with- 
out its authority ; and if he shall attempt it, it will be my duty, as it is 
my determination, to exert all the power confided to the Executive 
government by the Constitution and laws to prevent it. I am resolved, 
at every hazard, to maintain our rights in this controversy as against 
Spain, and I am equally resolved that no act of our own citizens shall 
be permitted to place this government in the wrong. 

Mr. Law has an undoubted right to pursue his lawful business; but 
when a question is raised between this goveanment and a foreign nation 
as to whether the business which he pursues is lawful, or pursued in a 
lawful manner, the decision of that question belongs to the two govern- 
ments, and not to him. If the object be to assert his right to enter the 
port of Havana with such persons as he may choose to select, in de- 
fiance of the laws and government of Spain, he has certainly done 
enough to present that question for the decision of the governments of 
Spain and the United States ; and the negotiation has already com- 
menced, and our rights, as we understand them, have been asserted, and 
as I said before will be maintained. But the act of this government can- 
not be controlled by the interference of any individual, and it is entirely 



CASE OF THE BLACK WARRIOR, ETC 51 

unnecessary that Mr. Law should repeat these attempts for the purpose 
of settling this controversy ; and if he wilfully does so, and in so doing 
violates the laws of a foreign nation within its own jurisdiction, and 
thereby loses or forfeits his vessel, he can expect no indemnity for such 
an act of folly from this government. 

We regulate the terms and conditions upon which all foreign vessels 
shall enter our ports, and we fix the penalties for a violation of our laws, 
and the right to do so we shall never suffer to be questioned by foreign- 
ers, and we do not question theirs to do the same thing. He must wait 
the result of the negotiations between the two governments. This is a 
question not to be settled between him and Cuba, nor even between the 
United States and Cuba, but between the United States and Spain, 
which alone is responsible for the conduct of the Governor of Cuba. 

I write in some haste, as the mail is closing ; but you are at liberty 
to make known the contents of this letter to Mr. Law, and to inform him 
that as a good citizen I presume he will not attempt any violation of 
our neutrality laws by attacking Cuba. 

I am truly yours, 

MILLARD FILLMORE. 

Hon. Hugh Maxwell, New York city. 



Mr. Calderon to Mr. Everett. 

[Translation.] 

Legation of Spain, Washington, 

December 10, 1852. 

The undersigned transmitted to his excellency the Captain General 
of Cuba a copy of the communication which, under date of the 15th 
ultimo, the honorable Secretary of State did him the honor of addressing 
to him when he enclosed to him the affidavit or sworn declaration of 
Mr. William Smith, of which he also sent a copy to his excellency. 
General Cafiedo, in his reply of the 30th of the same month, which the 
undersigned received the day before yesterday, says to him, in sub- 
stance, that although, on his part, no step was taken to obtain this 
declaration from Mr. Smith, nevertheless, in view of the explicit terms 
in which it is couched, and in deferential consideration of the authority 
imparted to it by the fact of its having been communicated to the un- 
dersigned by the Hon. Edward Everett, he cheerfully accepts this 
necessary satisfaction, and ffeems it sufficient to enable him to direct, 
as he did the same day direct, that the Crescent City should be allowed 
to enter the port of Havana, and that the consequent permission to land 
should be given to Mr. Smith. 

The Captain General, in requesting the undersigned to convey this 
information to the government of the United States, which he now 
does, adds that he congratulates himself on the circumstance, that thus 
will be contradicted the insulting calumnies and false statements which 
some persons, availing themselves of in the name of Mr. Smith, have 
spread with the perverse design of blackening his character, and at the 
same time fomenting tumult and discord. His excellency trusts, above 



52 CASE OF THE BLACK WARRIOR. ETC. 

all, that not only the government of the United States, but all others, 
will be persuaded that, although he is firmly resolved to discharge the 
sacred and imperative duty of preserving at every cost the tranquillity 
nnd integrity of the territory intrusted to his care, and of maintaining 
intact the national honor, he is also ever animated by a lively wish to 
cherish the best relations with all the neighboring States with which 
her Catholic Majesty is at peace, and to manifest all ihe deference due 
to their governments. 

The undersigned avails himself of the occasion to renew to the 
honorable Edward Everett the assurance of his very distinguished 
consideration. 

A. CALDERON DE LA BARCA. 



Mr. Barringer to Mr. Everett. 



[No. 116. | Legation of the United States, Madrid, 

December ]4, 1852. 

Sir : Immediately after the receipt of dispatch No. 64, of the 28th 
October ultimo, from the Department of State, concerning the affair of 
the Crescent City, I brought the subject of its contents to the attention 
of her Majesty's government in an official communication. Believing 
that the gravity ot" the demand made, and the tenor of the instructions 
given, required such a course, this communication was an exact copy 
of that dispatch, with the necessary change of address, and the omis- 
sion of the references to dispatches and other documents mentioned in 
the first part of the dispatch. It was also accompanied by a copy of 
the affidavit of Mr. Smith, purser of the Crescent City, denying in the 
fullest manner every charge against him by the authorities at Havana. 
Having failed for several days to receive an answer, although urged in 
personal interviews, both with the Minister of Foreign Affairs and Un- 
der Secretary of State, I deemed it my duty to address a note to the 
former under date of the 7th instant, a copy of which is herewith en- 
closed. The important political events referred to in my dispatch No. 
115, which have since resulted in a dissolution of the ministry, com- 
bined with the proverbial disposition of the Spanish government to pro- 
crastinate the dispatch of public business, doubtless contributed to this 
delay. Allowance was also duly made for the delicacy and probable 
difficulty of the subject with her Majesty's government. On the 11th 
instant I received the answer, under date^»f the 8th, to the demand of 
the United States, and on the 12th I communicated my reply to the 
same. Copies of these notes are herewith transmitted. 

It will be seen, I deeply regret to say, that the just satisfaction de- 
manded by the government of the United States from that of her Catho- 
lic Majesty has been refused by the latter, and, instead of the " prompt 
and decided disapprobation " anticipated by the President from her 
Majesty's government, the latter has deliberately and emphatically ap- 
proved the conduct of the Captain General of Cuba, and it is manifest 
that, for the present at least, it is their purpose to persist in the same 
line of policy, whatever may be the consequences. I believe the sub- 



CASE OF THE BLACK WARRIOR, ETC 



53 



ject has been fully and maturely considered by her Majesty's govern- 
ment, and that instructions have been forwarded to the Captain Gen- 
eral of Cuba not to change the system pursued by him in reference to 
intercourse with the United States. The policy of the Spanish govern- 
ment, as far as the same can be carried out without an actual interrup- 
tion of peaceful relations, will be that of non-intercourse between our 
people and the island of Cuba. 

This purpose, if not frustrated, will be gradually but surely adopted, 
or all commercial and social intercourse will be only tolerated on such 
conditions as we cannot honorably accede or submit to. The difficulty 
of adjusting all commercial questions with a people and government so 
wedded to antiquated and obsolete ideas may well be inferred from 
the recent correspondence of this legation and her Majesty's govern- 
ment on the subject of the refusal of the latter to assimilate the flags of 
the two nations under the royal decree of January last, and thereby 
place American shipping in the peninsula and adjacent islands on a 
footing with that of other nations. The tone assumed, and the policy 
pursued towards the United States by her Majesty's government in ref- 
erence to the affair of the Crescent City, and other questions between 
the two countries, I think may be fairly attributed, not only to then de- 
votion to ancient prejudices and notions of government, and their want 
of a true knowledge of our people and institutions, but to expectations 
of foreign aid for the security of the island of Cuba to the Spanish crown 
in the event of a rupture with the United States. 

I have heretofore referred to this subject, of such interest to the gov- 
ernment and people of the United States, as must necessarily be every- 
thing connected with the ultimate destiny of that island. They rely 
with much hope, and even confidence, on the assistance of both England 
and France, especially the latter, in such a contingency, to preserve 
and secure that island to their dominion. On this subject I have no 
official and authentic information to give the department; but, judging 
from that derived from various sources, in conversation with persons 
likely to be informed on such a subject, I state it as my conviction that, 
in regard to England, matters remain as heretofore represented by me, 
to wit: that instructions are given to the British naval forces in the Gulf 
of Mexico to assist the Cuban authorities whenever they may request 
such aid in preventing, by force if necessary, the landing of any armed 
and illegal expedition, such as that of Lopez, against the island, and that 
such instructions do not embrace any other contingency. Indeed, I be- 
lieve the relations between Spain and England are not so intimate and 
. cordial as they were a year since, but that French influence is now at 
this court in the ascendant. Spain has long been the theatre of diplo- 
matic rivalry, and the contested ground of ambition for political ascend- 
ancy between England and France. 

It is undoubtedly true that at present the government of her Majesty 
is on the best and most intimate terms with that of the emperor of the 
French; and it is now said that the latter has not only given assurances 
of aid, if required, similar to those I have referred to in the case of Eng- 
land, but that secret guarantees have been made to Spain for the secu- 
rity of her West India possessions in every contingency, and by the 
employment of the land and naval forces of his imperial Majesty, if ne- 



64 CASE OF THE BLACK WARRIOR, ETC. 

cessary. I feel it my duty to give these rumors only for what they are 
worth, and for the purpose of drawing the attention of our government 
to the subject. 

I may be allowed to state in this connexion that there is at present 
an increase of the naval forces both of England and France in the Gulf 
of Mexico, and that reinforcements, both naval and military, have re- 
cently been sent from Spain to the island of Cuba. 

The Spanish government undoubtedly have serious apprehensions 
for the fate of the island, either from internal disaffection, foreign inva- 
sion, or a rupture with the United States, or all combined ; and every 
effort to the last extent of their power will be made to preserve to their 
dominion this most cherished treasure of their once immense posses- 
sions in the New World. It is said that, as a last resort, to prevent its 
falling into the power of the United States, or becoming a free and 
independent State by revolution, secret orders have been issued to 
emancipate the slaves and place arms in their hands, for the conquest 
and maintenance of their own rule and authority in the island, and that 
is the true reason of the recent increase of the slave trade in that island 
in violation of public treaties. 

It is repeated as a motto in the public press of Spain that Cuba must 
always be either " Spanish or African." What the future may bring 
forth it is impossible to foresee, but this is certainly the prevalent state 
of feeling and determination in Spain in reference to the aspect of affairs, 
and the final destiny of the island of Cuba. 

I have referred to these considerations in connexion with the subject 
of this dispatch, not because I do not trust and believe that the affair 
of the Crescent City may still by some means be amicably and satis- 
factorily adjusted, but because I feel bound to say that if the course 
now complained of and the policy now pursued by Spain towards the 
United States, and so much deprecated by the latter, in reference to 
their intercourse and commerce with the island of Cuba, be persisted 
in by the former, the present peaceful relations cannot, in all proba- 
bility, be continued between the two nations, and that we should be 
prepared for any event. 

I have the honor to acknowledge the receipt of your dispatch No. 
65, of the I3th ultimo, with its enclosures, and beg to remain, with 
sentiments of the highest respect, sir, your obedient servant, 

D. M. BARRINGER. 

Hon. Edward Everett, 

Secretary of Stale. 



Legation of the United States, Madrid, 

December 7, 1852. 

Sir : On the 24th ultimo I had the honor to address your excellency 
on the subject of the affair of the "Crescent City." The nature of that 
communication, made under express instructions from my government, 
was such as to require an early reply. I am fully aware that recent 
events of importance at this capital have necessarily claimed much of 
your excellency's attention, as a minister of the crown ; but as so much 



CASE OF THE BLACK WARRIOR, ETC 55 

time has now elapsed since the date of that communication, I find it my 
duty to call the attention of her Majesty's government to the same, and 
to express my earnest wishes for a reply at the earliest period. 

I avail myself of this occasion to renew to your excellency the 
assurance of my most distinguished consideration. 

Your obedient servant, 

D. M. BARRINGER. 
His Excellency Don Manuel Bertram de Lis, 

Minister of State. 



[Translation.] 

First Department of the Office of State, 

Palace, December 8, 1852. 

Sir: I have received your excellency's note of the 24th November 
last, in which, by order of the President of the United States, you com- 
plain that the entrance to the port of Havana had been denied to the 
mail steamship Crescent City. 

Your excellency will permit me to express the surprise which this 
reclamation has caused me, when, by communications from the minister 
of her Majesty at Washington, I had received information that the gov- 
ernment of the United States had recognized the perfect right and 
sufficient motive with which the Governor Captain General of Cuba 
proceeded in this matter, and had taken measures, in consequence, that 
Lieutenant Porter, who had provoked that action by his imprudent 
conduct, should leave the command of the Crescent City. 

But since my hope has been disappointed, and your excellency has 
thought it your duty to present this reclamation, I find myself com- 
pelled to answer it. Your excellency recognises, as you could not do 
less than recognise, the perfect right which every nation has of estab- 
lishing the conditions which it may judge proper lor the admission into 
its ports of foreign vessels, and, consequently, there is no need of dis- 
cussion on this point. But your excellency says that these conditions 
ought not to be incompatible with received usages in commercial rela- 
tions among the nations. I agree, without difficulty, that this is so, and 
so ought to be, in ordinary circumstances ; but I regret to have to 
remind your excellency, that the actual situation of the island of Cuba, 
far from being able to be considered as a normal situation, is com- 
pletely exceptional, (and not, certainly, by any fault of the Spanish gov- 
ernment,) and that, in such a situation, the first duty of the authorities 
is to provide against dangers ; and it would not be just to exact that its 
fulfilment should be subjected to the considerations which in more set- 
tled and quiet times, are wont to be observed among enlightened nations 
for the benefit of commerce. 

The publication of [newspaper] articles injurious to a foreign gov- 
ernment may not be, in ordinary times and circumstances, a sufficient 
motive for that government to exclude from its ports a vessel which 
shall have on board the author of those articles ; but I invite the atten- 
tion of your excellency to the circumstances in which the island of Cuba 



56 CASE OF THE BLACK WARRIOR, ETC 

finds itself, and to those which accompanied the refusal of General 
Canedo to receive the Crescent City. 

The island of Cuba sees itself constantly menaced with invasion by 
bands of adventurers who collect in the United States, who there con- 
spire, who there distribute arms and money, who there print incen- 
diary libels, and who, united with some Cubans proscribed by the 
laws as traitors to the government of their country, exert themselves to 
light up in it the fire of sedition. Their audacity has arrived at the 
point of printing a revolutionary periodical in the very capital of the 
island, the authors of which have happily been discovered, thanks to 
the vigilance of the authorities. 

This was the situation of things when the Crescent City presented 
herself at the Havana, carrying on board a man who, according to the 
information of those authorities, had fomented, by his writings, the con- 
spiracies against the island. It ought not, therefore, to appear strange 
that the Governor General of the same should deem the presence of that 
man undesirable ; and just as little that, in view of the Crescent City's 
not having respected the warning not to present herself again at the 
Havana with Smith on board, he should forbid the entrance to a vessel 
which thus ignored his authority and the weighty reasons for that meas- 
ure. Your excellency cannot help knowing that the Crescent City, 
considered as a messenger of the enemy — for enemies of Spain declared 
are they who pretend to seize by force a part of her territory — might 
have been subjected, according to the l&ws of war, to measures still 
more severe than that of expulsion, to which the Captain General 
limited himself. 

And this manner of proceeding is so much the more natural and jus- 
tifiable, since, whatever may be the circumstances of the mail packets, 
and the contracts which the compa^r may have with the government 
of the United States, it is undeniable that those vessels never can be 
considered as having a right to the privileges and attentions due to ves^- 
sels-of-war, but as subject, like all commercial vessels, to the jurisdic- 
tion of the authorities of the port ; and their condition is in nowise 
altered by the circumstance, purely accidental and dependent upon the 
interior regulations of the country, that those vessels are commanded 
by an officer of the war marine. 

In taking the measure which has caused this reclamation from the 
government of the United States, it was in no way the intention of the 
Governor Captain General to offend that government ; his only object, 
was to adopt a measure which he deemed proper for the security and 
good order of the island. ' 

In the same understanding, the government of her Majesty has also 
approved the conduct of General Canedo, whilst it absolutely could not 
be its intention to do an injury to that of the United States, with which 
it desires to maintain good and amicable relations, and whose good 
will and wishes it appreciates. 

I have no doubt that these explanations will be sufficient to satisfy 
in every point the government of the United States, but in view of what 
your excellency manifests in one of the paragraphs of the note to which 
I answer, your exellency will not be surprised at the declaration that 
the government of her majesty is resolved to adopt all the measures 



CASE OF THE BLACK WARRIOR, ETC 57 

which it may think necessary, within the sphere of its attributes, as the 
government of an independent nation, to provide for the security of the 
territory of the same, and that from this firm determination it will not 
be driven by any menace or consideration, of whatsoever character it 
may be. 

The government of her Majesty promises itself that this task will be 
the more easy for the good will with which it hopes that the government 
of the United States will co-operate to defeat the intentions of those 
unquiet and turbulent men who, in order to satisfy a criminal covetous- 
ness, neglect not the smallest pretext for exciting resentment between 
Spain and the United States ; and the government of her Majesty, on its 
part, will neglect no means for destroying such projects, thus securing 
solidly the peace which now exists between the two nations. 

I avail myself of this occasion to renew to your excellency the assu- 
rance of my distinguished consideration, &c, &c, &c. 

MANUEL BERTRAN DE LIS. 

To the Minister of the United States. 



Legation of the United States, Madrid, 

December 12, 1852. 

Sir : I had the honor last evening to receive your excellency's note 
of the 8th instant, in reply to mine of the 24th ultimo, on the subject of 
the demand made by the government of the United States, in conse- 
quence of the refusal of the Captain General of the island of Cuba to 
permit the entry into the port of Havana of the mail steamer " Cres- 
cent City," or to allow her to deliver the mails or passengers destined 
for that island. The reasons for that demand, and the principles upon 
which it is based, are so fully and so explicitly stated in my former 
note, which indeed contained the exact instructions from my govern- 
ment, that it is not deemed necessary or becoming to enlarge upon them 
in this communication. 

I cannot forbear, however, the expression of my sincere regret at the 
unsatisfactory nature of the answer of her Majesty's government as con- 
tained in your excellency's reply. The facts, as stated in my note, are 
uncontro verted, but the principles insisted upon by your excellency in 
behalf of her Majesty's government will, if persisted in, inevitably re- 
sult in the most serious consequences, not only to all commercial inter- 
course between the United States and her Majesty's West India posses- 
sions, but necessarily, likewise, to the friendship and peaceful relations 
which ought to exist between both nations. 

What is the pretence now made by the Captain General of Cuba — 
now sanctioned and authorized, according to the note of your excel- 
lency, by her Majesty's government? Wiry, that under an accusation, 
a mere suspicion indeed, that an individual has been the author of an 
offensive publication, or any other obnoxious act, in his own country, 
the Captain General may, at any time he may deem proper, without 
due notice, and without being in any way answerable for his conduct 
to the demand of a friendly nation, not only prevent such person from 



58 CASE OF THE BLACK WARRIOR, ETC 

entering any port of the island, but also exclude the vessel, belonging 
to a friendly power, which has him on board, at whatever injury to 
commerce or inconvenience to other passengers, although such vessel 
may be commanded by a properly appointed officer of that friendly 
power, and chartered with the full knowledge and consent of the local 
authorities and the Spanish government, to deliver, at regular periods, 
the public mails of that nation at such port. 

Under this extraordinary claim the Captain General of Cuba is not 
only made the censor and sole judge of what shall or shall not be pub- 
lished in a foreign press, to debar the author from all communication 
with the island ; not only the exclusive arbiter to decide what are and 
what are not libels or "calumnies" against his government; but its 
practical assertion puts it entirely in his power to say who shall and 
who shall not be in the employment of owners of friendly vessels en- 
tering the ports, excluding or detaining all vessels, even the mail-ship, 
at his mere will and pleasure, for he alone is to judge of the exigency 
which requires the exercise of the power claimed by him. It is mani- 
fest that such arbitrary and unaccustomed requirements as are insisted 
upon by the Captain General of Cuba cannot be enforced without an 
interruption of all friendly intercourse. 

Publications like that complained of are not within the control of the 
company owning the vessel, or its officers on board ; they cannot know 
who are the authors. The most gross and violent abuses of authority 
must follow the claim to exercise such jurisdiction over foreign vessels 
for what may have been done in their own country. In the very case 
before us, even admitting the right of the Captain General to exclude 
Purser Smith on the ground stated, it appears that he was wholly in 
error, and that Mr. Smith was in no way guilty of the accusation 
against him. Besides the statement of Lieutenant Porter, and that of 
the company, testifying to his innocence as far as they believed or could 
ascertain, Mr. Smith himself, who is represented to be of inoffensive 
character and entirely worthy of credit, makes solemn oath that he 
" has never written or published anything against the government of 
the island of Cuba, nor ever carried letters or messages to and from 
disaffected persons in said island, or held any communication with such 
persons, or in any manner interfered with the affairs of the said island 
or the proceedings of its authorities." 

And, if the undersigned is not misinformed, in a similar and recent 
instance the mails on board an American merchant vessel were seized 
and examined, the passengers imprisoned and maltreated by the same 
authorities, when it appeared, on further examination, that the suspi- 
cions on which they had acted were groundless. 

These facts are referred to merely to show how liable to abuse is 
the right claimed by the Captain General, admitting it to exist for cer- 
tain purposes, on the ground of local police regulations for the general 
safety, and how harsh, inconsiderate, and injurious has been his con- 
duct in the cases referred to. The important inquiry, however, is not 
whether Mr. Smith, or any other particular individual or class of per- 
sons obnoxious to the local authorities in her Majesty's government, 
can be excluded and held "incommunicado" with the island from any 
considerations of public security or order ; but whether in this unusual, 



CASE OF THE BLACK WARRIOR, ETC 59 

unadvised, and unfriendly manner, the Captain General can exclude, 
under existing treaties, and the acknowledged mercantile usages of 
the world, any American vessel from the ports of Cuba, because 
she may have one objectionable person on board, and thus interrupt 
commercial and social intercourse between the countries — more espe- 
cially when that vessel partakes of a public character, by being em- 
ployed by the government of the United States for the transportation 
and delivery of the public mail, and is commanded by an officer of the 
war marine for that purpose, with the consent and continued acquies- 
cence of the local authorities of the island, as well as that of the Span- 
ish government. 

This claim is emphatically denied, and against such proceedings the 
government of the United States do solemnly protest. If persisted in, 
no American vessel can be exempt from liability to arbitrary seizure, 
detention, injury, and insult. Such a course is in gross violation of that 
international comity on which is founded almost all commercial inter- 
course. Besides the want of actual necessity, under the circumstances 
of the case, to justify such a proceeding on the part of the Captain Gen- 
eral, it is believed to have been unwise and impolitic, and well calculated 
to defeat the very ends intended by its adoption. It is true, as I am 
happy to say, that in your excellency's note there is a distinct and full 
disavowal of all purpose on the part of the Captain General and of her 
Majesty's government, in approving his acts, to offend in any manner 
the government of the United States. But still his conduct is approved, 
and it is declared that a similar course of proceeding will be pursued 
in future, at every hazard. If such continue to be the assertion of her 
Majesty's government, it will be for that of the United States to take 
such measures as may be necessary to protect their own interests, and 
such as may be consistent with their own sense of dignity and justice, 
under all the circumstances of the case. 

Your excellency is not ignorant, that while maintaining in their full 
extent the honor and interests of my own government and nation, it has 
always been my anxious wish and effort to do justice to Spain, and to 
preserve and confirm these ties of friendship between both nations. 
But I am free to declare, that perseverance in the policy which has 
been approved by her Majesty's government, and the continued exer- 
cise of the power claimed by the Captain General of Cuba, are not 
calculated to strengthen these ties, and maintain the peaceful relations 
which now happily exist. 

Your excellency does injustice to my government and myself in sup- 
' posing that in my former note the language of u menace" was em- 
ployed. It is due, however, to the gravity of the subject itself, and the 
relations which subsist between both governments, that the true ten- 
dency of measures should be candidly and fully examined, and all the 
consequences fairly stated and looked in the face. Peace can be best 
maintained by cordial frankness and a perfect understanding of mutual 
views and purposes. 

I deem it also proper to state, in reply to the surprise expressed by 
your excellency that this demand should have been made after the 
receipt of information from her Majesty's minister at Washington, that 
I have been furnished by my government with no such information as 



60 CASE OF THE BLACK WARRIOR, ETC. 

that referred to. On the contrary, the views of my government are to 
be found in the note which I had the honor to communicate on the 24th 
ultimo, and, so far from removing Lieutenant Porter from the command 
of the " Crescent City," in consequence of the government of the Uni- 
ted States having recognized the perfect right and justice of the pro- 
ceeding of General Canedo in reference to that vessel, I have every 
reason to believe, in the absence of direct information from my govern- 
ment, that that officer was relieved and transferred to another vessel at 
his own request, to avoid any supposed irritation or complication of 
difficulties which might arise from his presence on the return of the 
steamer to Havana, in the regular performance of her contract with 
the government. 

A copy of your excellency's note containing the answer of her Ma- 
jesty's government to the demand made by that of the United States, 
shall be immediately forwarded to the latter for their further action on 
the subject. 

I avail myself of this occasion to renew to your excellency the assu- 
rances of my distinguished consideration. 
Your obedient servant, 

D. M. BARRINGER. 

His Excellency Don Manuel Bertran de Lis, 

Minister, fyc, &fc. 



Mr. Roberts to Mr. Everett. 

Office of the U. S. Mail Steamship Company, 

New York, December 14, 1852. 

Sir: On the 15th of November ultimo we were notified by the 
collector of this port, under instruction from the Department of State, 
by the direction of the President, that official information had been re- 
ceived at the department stating that "on occasion of the arrival of 
the Crescent City at Havana, on the 14th October last, she entered the 
port within the hours prohibited by a law or regulation of the island 
of Cuba, notwithstanding, as is alleged, she was hailed three times, 
and required to desist ; that the sentinels whose particular duty it was 
to fire upon a vessel under these circumstances have been imprisoned 
for failing to perform their duty on the occasion ; and that the Governor 
General of the island informed Mr. Conkling, the American minis- 
ter to Mexico, on his visit to the island, that he had given peremptory 
orders, that should an attempt again be made by the commander of 
the Crescent City to enter the port of Havana at an irregular hour, she 
should be fired upon from the Moro." 

When the above communication was received at this office, Lieut. 
D. D. Porter, who was in command of the Crescent City at the time 
referred to, was absent from this port. On his return I submitted the 
communication from the department to him, and received the reply 
enclosed herewith. 

It has been the invariable course of this company to instruct the 
commanders and officers of its ships scrupulously to observe every 



CASE OF THE BLACK WARRIOR, ETC. 61 

regulation of the port of Havana, and I have no reason to doubt that 
such instructions have been complied with. I need not assure the 
department that no such regulation, so far as it ma}*- be known to 
exist, shall be infringed by the ships or the commanders of the com- 
pany. 

I have the honor to be, very respectfully, your obedient servant, 

M. O. ROBERTS, Agent. 
Hon. Edward Everett, 

Secretary of State. 



New York, December 6, 1852. 

Sir : In answer to a communication from the Hon. Secretary of 
State, on which you ask information relating to the following charge 
brought against me while in command of the Crescent City, to wit : 
" On the arrival of the Crescent City on the 14th ult., she entered the 
harbor within the prohibition hours, notwithstanding, as is alleged, 
that she was hailed three times, and required to desist" — I beg to 
state that the statement is without foundation. I entered the port in 
broad, day-light, and received no hail from the fort or guard-ship. 
There was not a single sentinel or other person visible on the Moro, 
and the telegraph house from which we are usually hailed was closed, 
and no one stirring, though it was the usual hour for telegraph. I 
know of no regulation prohibiting the entrance of vessels into the port 
of Havana, after night fall, though there is one prohibiting the exit of 
vessels without a pass. I have often entered the port at the same 
hour I did on the occasion alluded to ; have sometimes been hailed, 
and sometimes not ; and have, on two occasions entered after sunset, 
without having been accused of violating the port regulations. At 
the time I entered on the 14th, other vessels were also entering, and 
taking their departure from the harbor. I am firmly convinced that 
there is no port regulations prohibiting the entrance of vessels at any 
time ; they are sometimes required to anchor at or near the guard-ship 
inside the harbor, but then only in case they are hailed, which was 
not done in the case of the Crescent City. 

Very respectfully, your obedient servant, 

D. D. PORTER. 

M. O. Roberts, Esq. 



Mr. Everett to Mr. Sharkey. 

Department of State, 

Washington, December 30, 1852. 
Sir : I transmit you, herewith, copies of correspondence between 
this department and the collector of New York and the agent of the 
United States Mail Steamship Company. 



62 CASE OF THE BLACK WARRIOR, ETC 

You will have the goodness, in a proper and discreet way, to ascer- 
tain the facts of the case, in reference to which there seems to be a 
direct disagreement between the statement received by us from an 
authentic source, and Lieutenant Porter. You will easily see that 
much delicacy may be necessary in pursuing the inquiry. You will 
also have the goodness to procure and forward to this department a 
copy of the port regulations of Havana. 

I am, sir, &c, 

EDWARD EVERETT. 
Wm. L. Sharkey, Esq. 

United States Consul, Havana. 



Mr. Roberts to Mr. Everett. 

U. S. Mail Steamship Company, 

New York, January 4, 1853. 

Sir : On the 14th December I had the honor to enclose to you the 
statement of Lieutenant Porter, United States navy, in answer to the 
allegation made officially to the Department of State, that on the 14th 
October, he, as commander of the steamship Crescent City, had en- 
tered the port of Havana within the hours prohibited by a law or regu- 
lation of the island of Cuba, notwithstanding he was hailed three times 
and requested to desist ; that representation of the fact had been made 
to Mr. Conklin, American minister to Mexico, on his late visit to Ha- 
vana, and that the Governor General had given orders that should the 
attempt be again made to enter the port at an irregular hour, the ship 
should be fired upon from the Moro. 

Lieutenant Porter denied the fact of being hailed by the sentinel, 
and stated that he knew of no law or regulation prescribing hours for 
entering the port. 

It will be seen, by the enclosed official copy of the regulations of the 
port of Havana, that no such 'prohibition exists, so far as the regulations 
have been published and are known to the commanders of vessels en- 
gaged in commerce with the island. 

I have the honor to be, very respectfully, your obedient servant, 

M. O. ROBERTS, 
Agent of the U. S. Mail Steamship Company. 

Hon. Edward Everett, 

Secretary of Stale. 



Orders, that all masters of vessels entering this port observe the following 

regulations : 

Article 1. Vessels entering port will be governed by the articles of 
these instructions : No vessel can be moved from one spot to another 
without first obtainining permission from the captain of the port ; and 
such removal can take place only between sunset and nine o'clock of 



CASE OF THE BLACK WARRIOR, ETC 



63 



the succeeding morning; and any one contravening this regulation 
shall pay a fine of $12 for the first time, and of $24 in case of reitera- 
tion. No vessel shall pass across any of the shallows of the port, nor 
from one channel to another, without taking a pilot, although his cap- 
tain knows them perfectly well, in conformity with trit. 5th, tit. VII, art 
36, of the royal naval ordinances ; and he who shall contravene this 
regulation shall pay the pilotage just as if he had employed the pilot. 

Art. 2. As soon as a vessel has anchored and her sails are furled, 
the captain shall moor on the east side of the channel, in order to leave 
it free. This must, be done by all vessels alike, whether they have 
anchored outside the guard-ship or within. They will make fast to 
vessels near them until they reach their place of mooring. This rule 
is the more imperative if the vessel, on account of the lightness of the 
wind, has anchored in the narrowest part of the channel. In such 
case, the master must warp out of the channel immediately. If any 
master, after being required so to do, shall obstruct the channel, a boat 
with a pilot shall be sent, at his charge, to place his vessel in a pro- 
per position, and pay a fine of $12, besides the damages originated 
thereby. 

The master, on coming ashore, must present himself at the office of 
the captain of the port ; and if he has any colored man on board, his 
consignee must sign the bond before the twenty-four hours of his an- 
choring, according to the orders of the Captain General; and not doing 
it in the fixed time, will be taken ashore in deposite till the departure 
of the vessel in which he came. 

Art. 3. If he has powder on board, he must report the quantity, in 
order to make the necessary dispositions for its deposite. If he con- 
ceals the whole or any part thereof, the master shall pay a penalty of 
$24, and of $48 in case the vessel should be moored at the wharf pre- 
vious to said declaration ; as it has been observed that some delay its 
deposite in order to gain time in hauling to the wharf, and others keep 
their powder on board while in the stream under pretext of it being but 
a small quantity. The discharge of cannon, or fire-arms of any de- 
scription, in the harbor, is prohibited, under a penalty of $15, without 
permission from the admiral and giving notice at this office. 

Art. 4. At sunset, fires on board of every vessel must be extin- 
guished, whether in the wharf or in any other part of the port. The 
cabin light may continue till gun-fire, provided it is kept in a lantern 
in good condition. The master of any vessel who neglects to obey the 
above disposition will be liable to a fine of $25, if lying on the stream, 
and of $30 if he is fastened to the wharf. 

Art. 5. No vessel can take ballast on board or discharge it without 
a written permission from the captain of the port, who will point out 
the place from which it must be taken, or where it must be discharged. 
Care must be taken to place tarpauling to prevent its falling in the 
water. In neglect of this, the master of such vessel will pay a fine of 
$2 for every twenty quintals, and of $4 being the vessel lying at the 
wharf in the harbor, or in any other place prejudicating the harbor. If 
for carelessness in taking in or out ballast, should fall any part of it 
into the water, the captain will pay the fine of $2 for every twenty 
quintals, and of $4 in case of reiteration, being the fine of one and a half 



64 CASE OF THE BLACK WARRIOR, ETC 

dollars for a quantity less than twenty quintals in any of the preceding- 
cases. Equal care must be taken in discharging bricks ; and on no 
account must any straw, sand, or sweepings be thrown overboard, 
under a penalty of $6 for the first time, and in case of reiteration, of 
$24 ; for if there be any on board, the master, after putting it in his 
launch, may call at the captain of the port's in order to be told where 
to discharge it. Should there be violated by any step or act two or more 
of the above dispositions, the infractors will pay the value of the fines, 
as prescribed in every of said cases. To the same fines will be liable 
the captains or masters by disobeying the preceding regulations in any 
anchoring place on the coast, even not being there any authority of ma- 
rine. It is likewise prohibited to heat tar or pitch on board, as this can 
be done only on shore, and at the place designated, it being understood 
that those who violate this article shall pay a penalty of $50. 

Art. 6. All orders communicated to masters of vessels by pilots or 
port vigilants must be obeyed, since they emanate from the captain of 
the port. 

Art. 7. In case of any vessel getting unmoored and being in danger 
of stranding or being lost by weather or other accident, it is the duty 
of all other vessels to render every possible assistance. If any one fails 
in this duty, he shall pay the damage resulting from his neglect. 

Art. 8. Every master of a vessel, at the time of anchoring, must 
take care that his cables do not get foul of others, as he will be liable 
to make good any damage that may arise from his carelessness. 

Art. 9. No vessel will be allowed to leave port before sunrise or 
after sunset, for they must be visited on going out. 

Art. 10. In case a master wishes to caulk, 1 repair, careen, heave 
down, or fumigate his vessel, he must first obtain permission from the 
captain of the port ; but by no means will it be allowed at the wharf, 
under the fine of $12, as there are for this purpose several careening 
places, where it may be done without inconvenience or danger to the 
harbor, under the fine of $24 if done in any careening place without 
said permit ; and any one smoking or breeming his vessel in any 
place of the harbor without said license will pay a fine of $100. 

Art. 11. The master intending to haul his vessel to the wharf must 
first have a place assigned him by the collector of customs. He shall 
by no means lie behind those fastened to the wharf, under a -penalty of 
$50 and a liability for all damage that may follow ; particularly in 
case of gales or fire, when it would be necessary to haul a vessel from 
the wharf. He must also first brace the lower and topsail yards into 
port, cokbill his anchors, and in case it being a small vessel, the jib 
and flying jibboom must be taken in and the spanker boom unshipped, 
in order to avoid damaging other vessels. They must be distant from 
each other at least three feet by the beam, by which means they may 
haul from the wharf without difficulty. In hauling to the wharf or 
leaving it, or moving from one place to another, permission must first 
be had from the captain of the port : either one or the other can only 
be clone from daylight until nine o'clock in the morning, or from sunset 
till dark ; but by no means can they remain in the channel, or disturb 
the free ingress with lines or ropes, under penalty of $100 and pay- 
ment of the damage they may occasion. 



CASE OF THE BLACK WARRIOR, ETC 65 

Art. 12. No vessel shall be moored in the channel but in the neighbor- 
hood of, or along the Casa Blanca shore, leaving a free space between 
the north end of Marty's wooden wharf and the northwest angle of the 
King's store, at Casa Blanca, for the free passage of boats to and from 
Cabana; then along Aromy's wharf and the edge of the channel until 
the wharf of Lucas Padron, in which space they may moor with two 
anchors — the first ahead with forty fathoms chain, and the other on 
the stern thirty fathoms — bearing northwest during the months from 
October to March, and the rest of the year to the southeast, keeping 
themselves in a line to avoid doing any damage to one another ; and 
from thence to the shallows on the east side can be moored with one 
anchor, with twenty-five fathoms of chain, during the season of fight 
winds, and during the season of gale winds they may double the 
length of their chains as circumstances may require, keeping the same 
distance from one another, without obstructing the channel of quaran- 
tine or the pass of the English mail steamers, and also avoiding to an- 
chor near vessels of war, from which they must be distant at least one 
cable's length. It will not be a pretext for not complying with the 
above rules that the vessel is going to or coming from the wharf, be- 
cause, being in any of these cases, they must choose the proper time 
to moor in their appointed place the same day they move from another, 
being understood that those who shall not obey this disposition will be 
obliged to receive the saving launch or the pilot's boat, from the cap- 
tain of the port, with its crews, to be properly moored, and all the 
charges will be paid by the neglecting masters of vessels according to 
the tariff, besides the fees of the pilot employed. 

Art. 13. No vessel shall be fastened to the buoys which are placed 
to indicate the shoals in the channel, nor to those destined for the ves- 
sels of war ; the master doing so shall pay a penalty of $12, and also 
the expense of all damage which may result from moving a buoy from 
its place. There are, for that purpose, seven buoys anchored on each 
side of the channel, at the entrance of the port, in which they can make 
fast their ropes to haul in the vessels, and are distinguished from the 
others by having an iron ring on the top, and those which indicate the 
shoals have only an iron point. 

Art. 14. In case of fire breaking out on board of any vessel in har- 
bor, it is strictly enjoined upon the master of every vessel in port to 
send immediately his boats to the scene of the fire, well manned, and 
provided with lines, buckets, swaps, and every other article necessary 
in such cases, as well as fire engines, if they have any on board, in or- 
der to extinguish the same as quick as possible. The captain of the 
port orders the most strict obedience to this article under the immedi- 
ate responsibility of masters of vessels. 

Art. 15. A master of a vessel who may require a launch is at lib- 
erty to make his selection, but he must give notice at the office of the 
captain of the port in order to have it examined, as prescribed by ordi- 
nance ; and he who loads a launch without leaving the wales two 
inches out of water, shall be subjected to a penalty of $20. 

Art. 16. In case of disturbances on board amongst the sailors, at 
late hours in the night, the master may call on board the guard-ship 
for assistance until the morning, when he may get a letter from his 
5 



DO CASE OF THE BLACK WARRIOR, ETC. 

consul to the captain of the port to lodge them iu jail. No master of a 
vessel shall discharge any seaman without permission from the consul 
of his nation. 

Art. 17. The day before a vessel goes to sea the master may call 
at the office of the captain of the port for an order to take his powder 
on board, if he has any in deposite. 

Art. 18. It is prohibited to pass backwards and forwards in the 
harbor in boats after evening gun-fire ; all persons doing so are liable 
to be carried on board of the flag-ship, where they will remain at the 
disposition of the admiral. 

Art. 19. 1st. As a safeguard against desertion, by preventing men 
from deserting or being stolen from the vessel to which they belong in 
order to ship in another, one licensed shipping-master has been ap- 
pointed for the port, who alone is authorized to ship any man, or en- 
gage him to serve in any way on board any vessel in the harbor. This 
shipping-master is prohibited from shipping any sailor until he shall 
have ascertained that the sailor has been lawfully, and conformably in 
all respects to the regulations, discharged from the vessel which brought 
him to this port, with the knowledge and consent of the consul of the 
nation to which said vessel belongs. Captains are at liberty to make 
their own bargain with any man thus lawfully discharged, but no sailor 
shall, under any pretext whatsoever, be employed or received, nor shall 
he be allowed to remain on board of any vessel in this port until after 
he has been regularly shipped by the licensed shipping-master, and 
notice thereof has been given by him, and by the master of the vessel 
on board of which said shipment takes place, to the consul of the nation 
to which said vessel belongs. 

2d. If one sailor should be employed or received on board of any 
vessel in violation of the foregoing prohibition, without the authorization 
of the commander of marine, (being Spanish subjects,) or without 
the same of the shipping-master, (being foreigners,) the master of such 
vessel shall pay a fine of $50 for every person ; which fine shall be 
doubled in every case where a sailor shall unlawfully be on board of 
any vessel after said vessel shall have been cleared at the custom- 
house. 

3d. It is the duty of the licensed shipping-master of the port, Mr. 
Daniel Warren, to comply punctually with this regulation, and to 
watch over all infractions thereof, that he may give immediate notice 
of the same to the captain of the port, who will impose and exact the 
penalty. 

Art. 20. The carrying of deadly weapons about the person is pro- 
hibited by the laws of this country, which punish the offender with six 
years' imprisonment at hard labor. This being the penalty which 
awaits every man found on shore with a pointed knife, or a pistol, or 
any other instrument whereby death may be inflicted, about his person, 
shipmasters are strictly enjoined to caution their sailors on this point, 
and to take care that they do not, by wearing their sea-knives ashore, 
incur the penalty of the law. This penalty attaches to the mere fact 
of having such knife or other weapon about the person, and it is not 
necessary that the weapon be used. 

Art. 21. All masters of merchant vessels are bound to hoist up their 



CASE OF THE BLACK WARRIOR, ETC. 67 

national flag every time the admiral ship does it fore and aft, being a 
holiday, or for any other cause ; and the captain, on leaving the vessel, 
must take particular care to recommend the person, whoever may be 
in charge of the vessel, to comply with the said order ; and not doing 
so, the captain will be responsible for the fault. 

Art. 22. For the purpose that the vessels lying in this port (should 
the barometers indicate bad weather) might be able to moor properly 
in due time, there have been established the following signals, which 
will be hoisted for some hours on the flag-staff of the office of the cap- 
tain of the port : 

1st. Red triangular signal signifies that there are appearances of bad 
weather. 

2d. Triangular signal, half blue and half yellow, horizontal, signifies 
that there are appearances of very bad weather ; and every time that 
the aforesaid signals have a black ball at the top or above, this will 
signify that the bad weather is becoming clear. 

Art. 23. On entering the port the first boarding officer will hand, 
gratis, these instructions to the master, who shall deliver them back to 
this office at the time of his clearance. 

Art. 24. All steam-vessels are bound to shorten their speed, as much 
as possible, from the moment they are under the Moro coming in, until 
they reach the same place going out of the harbor ; and the infractors, 
(not being their first visitation to this port,) besides the damages origi- 
nated, will pay the fine as stated below ; and in all cases, should they 
be proved that they have been instructed by the pilot of said order, 
$30. F 



Mr. Barringer to the Secretary of State. 
[Extract.] 

Legation of the United States, Madrid, 

January 5, 1853. 
I have the honor to transmit, herewith, copies of a note from her 
Majesty's Minister of State for Foreign Affairs, under date of the 28th 
ultimo, and of my reply to the same of the 30th ultimo, on the subject 
of the affair of the mail steamer "Crescent City." It will be seen 
/ from the former that her Majesty's government regarded the question 
in issue as finally adjusted, according to information in the Foreign 
Office, by the circumstance of the Captain General of Cuba having 
accepted, as sufficient and satisfactory to him, the affidavit of Purser 
Smith. 

After the full and emphatic approval by her Majesty's government of 
the conduct of the Captain General in this matter, as contained in the 
note of her Majesty's Minister of State, dated the 8th ultimo, and 
in the face of their direct refusal to grant the satisfaction demanded by 
the government of the United States, I could not, acting on a just 
sense of what was due to my own government, concur in this view of 
the subjeet, especially in the absence of any similar information from 



68 CASE OF THE BLACK WARRIOR, ETC- 

the Department of State. It will be seen from the previous corre- 
spondence that the affidavit of Purser Smith was communicated by me 
to the Spanish government here, and that it was not regarded by this 
government as of the slightest importance ; on the contrary, with that 
sworn declaration before them, the order of the Captain General was 
approved in all respects, and declared to be founded in just and suffi- 
cient reasons, notwithstanding the opinion of the President. Since the 
date of my said note of the 30th ultimo to the Spanish government, I 
have had the honor to receive your dispatch No. 65, of the 4th ultimo, 
with its enclosures, referring to this object. I do not feel authorized 
to infer from this dispatch that the President regards the question as 
finally adjusted, although informed of the gratifying circumstance that 
the Captain General had been pleased to abrogate the prohibitory order 
which has caused all the difficulty and embarrassment in this case. I 
am the more confirmed in this opinion, as your dispatch seems to 
contemplate further communicating with the Spanish government in 
reference to this unpleasant subject, for the satisfactory adjustment of 
which I now hope that the recent action of the Captain General, in 
rescinding the obnoxious order, has opened the way, if her Majesty's 
government are disposed to avail themselves of the same. 

As to the assurances to be given to her Catholic Majesty's govern- 
ment of the firmness and good faith with which the President has re- 
sisted the spirit of unlawful adventure against the island of Caba, I 
have heretofore endeavored, on all proper occasions, to make them in 
the most solemn manner, and will continue to repeat them as often as 
may be necessary. 

I regret to say, however, that, in my opinion, the government of her 
Majesty have never justly and fully appreciated the efforts of that of 
the United States in this respect, and have too often acted as if they 
entertained improper suspicions as to the real motives of our conduct. 
I have heretofore had occasion, in my correspondence with the depart- 
ment, to refer to the agencies which are too often employed to produce 
unfavorable impressions of our government and people in this peninsula. 

Hon. Edward Everett, 
Secretary of State. 



Madrid, December 30, 1852. 

Sir : I have had the honor to receive your excellency's note of the 
28th instant, announcing to me that, according to information received 
at the department of which your excellency has charge, the question 
concerning the order of the Captain General of the island of Cuba, 
refusing the entry of the American mail steamer " Crescent City" in 
the port of Havana, had been finally terminated, in consequence of the 
sworn declarations of Mr. Smith being considered by General Canedo 
as " sufficient and satisfactory." 

However rejoiced I should be to know that this unpleasant negotia- 
tion has been definitively adjusted on a basis satisfactory and honorable 
to both nations, I regret to say that I have, as yet, no such information 
from my government ; and certainly no such inference can be made 



CASE OF THE BLACK WARRIOR, ETC 69 

from anything that has yet occurred in the correspondence at this court, 
to which the question was referred by the United States. I fear, there- 
ore, that your excellency is under some misapprehension as to the 
much desired result of the final adjustment of this matter. I beg to say- 
to your excellency that the demand now made is not an affair between 
General Cafiedo and other subordinate officers of her Majesty's gov- 
ernment and the steamship company to which the Crescent City be- 
longs, or Mr. Smith, their purser. It is not a difficulty to be adjusted 
by an explanation to be given by Mr. Smith to the Captain General of 
Cuba, as if the latter were the author of a reclamation made for a wrong, 
real or supposed, done to his authority, and to the island of which he 
has the command only under a superior power. It is an affair between 
the government of her Catholic Majesty and that of the United States, 
who supposed they had a right to expect from the former the prompt 
and decided disapprobation of a course of proceedings on the part of 
their subordinate officer, the Captain General of Cuba, which was and 
still is regarded by the President, under all the circumstances, as un- 
necessary, unwise, harsh, and arbitrary towards a vessel of a friendly 
nation, upon what was then believed, and now proved to be, a ground- 
less accusation against a single individual on board of the same. 

The government of the United States conceived they had a just 
ground of complaint for what had been done by the Captain General 
of Cuba. This complaint they have made the subject of a remon- 
strance to the only responsible power, the government of her Catholic 
Majesty; and, in a spirit of friendship and earnest desire for an amicable 
and satisfactory result, have called on the latter to say if they approve 
the conduct of the Captain General in the matters which are made the 
foundation of the demand. Instead of the decided disapprobation 
which the President supposed he was justified in expecting, the gov- 
ernment of her majesty have replied, according to the note of your ex- 
cellency's predecessor in the office of foreign affairs, that they did ap- 
prove of the proceedings of the Captain General, though in the course 
pursued by the Captain General and by her Majesty's government in 
approving the same no offence was intended by either to the United 
States. 

This reply, which the undersigned deemed unsatisfactory, has been 
forwarded to the government at Washington, for their further advice 
and action. No answer has, or could yet have been received by me, 
to this communication. It will be awaited for with deep interest by 
the undersigned, and with an earnest hope that the question may yet 
be satisfactorily and honorably adjusted between the two governments, 
to whom it properly appertains. In the mean time, I had hoped, and 
still trust, that on a calm review of the whole case, her Majesty's 
government will admit that the grounds of complaint by the United 
States in the matters referred to were just, and that the conduct of 
the Captain General in this respect was indefensible. The act of the 
latter in accepting the voluntary affidavit of Mr. Smith as sufficient 
and satisfactory to him is duly and highly appreciated, as manifesting 
a conciliatory spirit, and as removing the embarrassments to commer- 
cial and social intercourse which had been caused by his previous con- 
duct ; but it does not atone for the wrong already done on two several 



70 CASE OF THE BLACK WARRIOR, ETC. 

occasions ; it does not answer the demands made by the government 
of the United States, and has not, so far as I am advised, in any de- 
gree changed the opinion of the President as to the character of the 
proceedings of the Captain General. The principle involved is not 
thereby altered, and no guarantee is given that the same thing may not 
again be done by the local authorities of the island whenever they may 
think it proper or convenient. Indeed, the demand made is left in a 
state more unsatisfactory to the United States ; for, if adjusted by the 
mere circumstances mentioned by your excellency, it would seem to 
imply, and may hereafter be quoted as a precedent to that effect, that 
the Captain General may justly exact from any officer he chooses to 
designate, on board an American vessel, of whatever character or 
description, a statement on oath that he is not, and never has been, en- 
gaged in any act whatever which the Captain General may, in his 
judgment or his caprice, deem obnoxious to the Cuban government, or 
any members thereof, as a condition precedent to the entry of such 
vessel in any part of the island. While the abstract right to exclude 
from the island Mr. Smith, or any other foreigner, for a specified rea- 
son, is freely admitted, it does not therefore follow that the vessels on 
which they are for the time being may also be excluded, and that it 
would be a friendly proceeding, in time of peace, to deny to the vessel 
of a friendly power the landing of the passengers and the delivery of 
the public mails on any such pretence as that made by the Captain Gen- 
eral, and in regard to which he now admits, by accepting and adopting 
the statements of Mr. Smith, that he was entirely in error, and acted 
before on groundless suspicions. 

It must be obvious to any one, and especially to one of your excel- 
lency's knowledge and experience in the commercial and other affairs 
of that island, that such a course of proceeding on the part of the Cap- 
tain General as that now solemnly protested against, if recognised and 
allowed to be adopted as a precedent for future action, must sooner or 
later terminate in a complete interruption of all friendly communica- 
tion, and an odious system of non-intercourse between the two nations, 
whose contiguity and mutual interests require a very different policy 
for the general welfare of both. I have too strong a conviction of the 
good wishes both of your excellency and of her Majesty's government 
towards the United States, and for the maintenance of peaceful and 
cordial relations with the same, to suppose that any such fatal result is 
desirable to either ; and on the part of the government of the United 
States it is, I trust, unnecessary to remind your excellency of the 
friendly desires and kind offices which the President has on all occa- 
sions, and some of great responsibility, so firmly and faithfully shown 
towards the government of Spain, as an assurance that, under all cir- 
cumstances, the American government will not fail to perform their 
whole duty towards a friendly power, and of their ardent desire to pre- 
serve perfect peace and harmony between both nations. 

I avail myself of this occasion to renew to your excellency the assu- 
rance of my most distinguished consideration. 

Your obedient servant, D. M. BARRINGER. 

His Excellency the Count of Alcoy, 

President of the Council and Minister of State. 



CASE OF THE BLACK WARRIOR, ETC 71 

[Translation.] 

First Department of the Office of State, 

Palace, December 28, 1852. 

Sir : I had the honor to receive your excellency's note of the 12th 
instant, in which you reply to mine of the 8th relative to the question 
raised at the Havana with respect to the mail steamer " Crescent City." 

I have now the satisfaction to announce to your excellency that, ac- 
cording to the information received in the department under my charge, 
this question is terminated by General Cafiedo having considered the 
sworn declaration of Mr. Smith, of which your legation is already cog- 
nizant, as sufficient and satisfactory. 

I believe it therefore unnecessary to pursue the discussion in reply 
to the above-mentioned note of your excellency ; and I avail myself 
of this occasion to renew to your excellency the assurances of my 
most distinguished consideration, &c, &c. 

The COUNT OF ALCOY. 

The Minister Plenipotentiary 

of the United States. 



Mr. Everett to Mr. Barringer. 

[No. 73.] Department of State, 

Washington, February 4, 1853. 

Sir : Your dispatches up to No. 121 have been duly received and 
submitted to the President. Your dispatch, No. 116, of the 14th of 
December, is accompanied by your correspondence with the Spanish 
government on the affair of the " Crescent City," and the President 
has directed me to express to you his approbation of the manner in 
which you have treated the subject. 

Since the date of the letters which passed between you and Mr. 
Bertran de Lis, the message of the President at the opening of the 
session, and the paragraph relative to the affair of the " Crescent City," 
in my letter to the Count de Sartiges of the 1st of December, of which 
a copy was transmitted to you, will have shown to you, and to the 
Spanish government, in a still stronger light than it appeared before, 
the reasonableness of our complaints of the conduct of the Governor 
General in this affair, and the consequent justice of our demand that it 
should be disapproved. 

The government of her Catholic Majesty appears to mistake the 
ground of our complaint, as it has mistaken, also, in the opinion of the 
President, the course which it should itself have adopted on this occa- 
sion. The United States have never denied the right of the Governor 
General of Cuba, under the unlimited powers with which he is clothed, 
to take any measures, however stringent, which he may deem necessary 
for the safety of the island committed to his government. 

But this is a right to be exercised under a proper responsibility to all 
whose interests are involved in the measures adopted. It is to be ex- 
ercised reasonably, and with due proportion of the means adopted to 



72 CASE OF THE BLACK WARRIOR, ETC. 

the end proposed — that is, the protection and security of the island. It 
ought also, as far as foreigners are concerned, to be exercised with the 
comity which one independent government owes to another. If it be 
said that the Captain General of Cuba, as a subordinate officer of 
Spain, could be under no responsibility and owe no comity to the 
United States, this consideration only shows that the responsibility of 
his acts devolves upon the government of Madrid, which, before it ap- 
proves his conduct, is bound to show that the measure adopted by the 
Captain General towards Purser Smith, and the vessel having him on 
board, was necessary as a measure of protection and defence for the 
island, or at least well adapted to that purpose, and was resorted to, if 
not on sufficient evidence, at any rate on reasonable grounds of suspi- 
cion, and was promptly communicated to this government, with the 
reasons which led to its adoption. 

It is scarcely necessary to say, that not one of these conditions was 
fulfilled. The exclusion of a single individual serving on board of the 
"Crescent City" in a subordinate capacity, and the prohibition of the 
landing of the mails and the passengers from any vessel having him on 
board, was certainly a measure indicating nothing but displeasure to- 
wards an individual, and not in the slightest degree tending to the safety 
ol the island. Purser Smith's supposed offence has never, to this day, 
been specifically stated to this government, neither as to its nature nor 
the manner in which it was committed. It is supposed to have been 
that of furnishing the press of New York with accounts deemed calum- 
nious of persons and things in Cuba. But considering the character 
which the Spanish minister ascribes to the company in whose employ 
Purser Smith sailed, it need scarcely be said that nothing was to be 
gained by excluding an individual whose place was sure to be taken by 
another equally dangerous, and that the only possible effect would be 
to induce a little more caution in the propagation of the calumnies com- 
p ained of. ' 

It is a striking commentary on the conduct of the Captain General 
of Cuba, in inflicting a blow upon the commercial intercourse of the 
two countries as a punishment for calumnious publications imputed, 
and that erroneously, to an individual, that in the journal "LaEspana," 
transmitted with your No. 121, and stated by you to enjoy the counte- 
nance of some of the highest personages in Spain, the President of the 
United States is spoken of in terms equally unjust and disrespectful — a 
circumstance, however, which,' instead of leading the government of the 
United States to desire to inflict any punishment on the culpable indi- 
viduals or innocent third persons, is regarded by it with entire indiffer- 
ence. In countries where the liberty of the press prevails, it is found 
that these abuses furnish their own correction. They become important 
only by being made the subjects of coercive measures. 

Again, what possible effect could the presence or absence of Smith 
have upon the passengers and the contents of the mail ? Could they be 
innocent or dangerous, as he happened to be on board or not ? And as 
this would be an absurd supposition, why confine the prohibition to the 
" Crescent City," when there were precisely the same reasons, as far 
as the safety of the island is concerned, to extend it to the other mail 
steamer, the "Empire City," in the employ of the same company? It 



CASE OF THE BLACK WARRIOR, ETC. 73 

is hardly possible to argue this question with gravity. The order was 
no doubt issued on the suggestion of some subordinate, in a moment of 
irritation ; was not communicated to the American consulate for seven- 
teen days, and then, without specification of the calumnies imputed to 
Smith, was persevered in after Smith had made affidavit of his inno- 
cence, and was adhered to for a considerable time upon the punctilio, 
afterwards abandoned, which required a personal disclaimer from Smith 
himself. To pronounce a course of measures like this, towards an in- 
dividual in Purser Smith's position, necessary for the security and pro- 
tection of an island garrisoned by twenty-five thousand troops and 
guarded by a powerful naval force, is an absurdity in terms. 

It is quite evident that the Captain General, long before the date of 
Mr. Bertran de Lis's letter approving his conduct, had felt, himself, that 
he had taken a hasty step, and seized the first opportunity to retrace 
it; and, in the opinion of the President, her Catholic Majesty's govern- 
ment would have pursued a more friendly course, if, instead of express- 
ing its approbation of a measure already rescinded in Cuba, it had at 
least offered to institute an inquiry into the circumstances of the case, , 
of which I infer, from the contents of Mr. Bertran de Lis's letter, it was 
itself quite imperfectly informed. 

In fact, this is perhaps the first time in the history of friendly States 
that an important branch of commercial intercourse has been suspended 
between two countries by a subordinate officer, without an offer, on the 
part of his superiors, of any explanation of the facts of the case, tending 
to show the necessity and reasonableness of the measure, or the evi- 
dence on which it was adopted. 

The President has the greater cause to be dissatisfied with the man- 
ner with which the Spanish government has treated his complaint, 
•inasmuch as he has uniformly, as is well known, exerted himself to the 
utmost of his constitutional powers, to prevent encroachment on the 
territorial rights of Spain. The tone of Mr. Bertran de Lis's letter 
would have been more appropriate if addressed to the mail steamer 
company which persisted in the attempt to force the admission of Pur- 
ser Smith, in defiance of the order of the Captain General. The Presi- 
dent knew the order to be an unreasonable and inappropriate one ; 
but, recognising the piima facie right of the Captain General to issue it, 
he felt it his duty to discountenance the attempt to resist it at the risk 
of bloodshed. This circumstance alone should have led the Spanish 
government to treat his just reclamation with deference. 

There are errors of fact and misconcept'jn of the existing state of 
things, which have inadvertently crept into the letter of the Spanish 
minister, on which I forbear to dwell. The immediate occasion has 
gone by. The course of the government of the United States, com- 
bining discretion with steadiness, averted a collision, and it is not worth 
while to engage in a protracted discussion of the past. 

The President accepts the assurance of the Spanish minister that no v 
offence was intended to this government by the sanction extended to the 
ill-advised course of General Cafiedo; and he quite approves your con- 
duct, in stating that it was no part of your purpose to intimate a menace 
to Spain. The last agent to be resorted to between independent States 
is the language of threat, and governments conscious of their strength 



74 CASE OP THE BLACK WARRIOR, ETC. 

and of the uprightness of their intentions, lose nothing by forbearance 
in the assertion of their rights. The President, however, directs you 
to state to the Spanish minister, with entire frankness, that his main 
ground for regretting the course pursued by her Catholic Majesty's 
government on this occasion, is, that it tends to weaken the hands of 
the government of the United States in performing the duties of an 
honest neutrality towards the possessions of her Catholic Majesty in 
this hemisphere. 

The foregoing, with the exception of two paragraphs, was written 
before the receipt of your No. 121, with its accompanying correspond- 
ence, the contents of which do not vary the state of the controversy. 
You will communicate the substance of this letter to the Spanish gov- 
ernment; but beyond this, unless something unforeseen occurs, the 
President does not think it worth while to continue the discussion. He 
has just directed me to propose to the Spanish minister here to obtain 
from his government authority to negotiate a commercial convention, 
the want of which is greatly felt ; and he would be unwilling, by pro- 
longing a fruitless controversy, to throw an obstacle in the way of such 
a negotiation. 

I am, sir, &c, 

EDWARD EVERETT. 

D. M. Barringer, Esq., fyc, fyc, Sfc. 



Mr. Barringer to Mr. Marcy. 

[No. 136.] Legation of the United States, 

Madrid, April 7, 185/ 3 
Finale of the Crescent City affair. 

Sir : In pursuance of the instructions contained in dispatch No. 73, 
from the Department of State, I have communicated to the Spanish 
government the substance of that letter. 

His excellency the President of the Council, who is also Minister of 
State for Foreign Affairs, expressed his regret that the course pursued 
by her Majesty's government in the affair of the "Crescent City" 
mail steamer had not been satisfactory to that of the United States, 
but he insisted that it ought not to have been expected that the govern- 
ment at Madrid should have disapproved of the course of the Captain 
General of Cuba. To this I answered, that I differed entirely, and 
throughout, from his excellency ; that it was not my purpose or wish 
now to renew the discussion ; that the ground taken by the United 
States was fully sustained by the facts and arguments of the case 
already presented ; that the government of Spain ought promptly to 
have disapproved of the rash conduct of the Captain General, and at 
least to have instituted a full inquiry into the matter immediately upon 
the complaint of the United States, before expressing their entire ap- 
probation of his conduct; and that if this course had been pursued, 
my opinion was that her Majesty's government would have finally as- 
sented to the just demand of the United States ; and the result would 



CASE OF THE BLACK WARRIOR, ETC 75 

have been much more satisfactory than that which has actually followed 
the negotiation on this unpleasant subject. 

It was evident, however, that the minister regarded the affair as now 
terminated ; and that if I had ever been instructed to ask for a reversal 
of the former decision in the case it could not have been obtained under 
existing circumstances. 

Having already communicated fully with the department in reference 
to this affair I forbear to add more, at present, than the expression of 
my regret and dissatisfaction with the course pursued by her Majesty's 
government, and my hope that a forbearance which, under peculiar cir- 
cumstances, has been extended to a nation with which we are at peace, 
will not be shown again, after the full warning, under the aggravation 
of a similar outrage upon our citizens and flag. 

I am happy to be informed that my correspondence on this subject 
has been approved by the government at Washington. 

I have the honor to remain, with great respect, sir, your obedient 
servant, 

D. M. BARRINGER. 

Hon. W. L. Marcy, 

Secretary of State. 




CASES OF THE STEAMER OHIO AND SCHOONER MANCHESTER. 

Mr. Marcy to Mr. Barringer. 

[No. 77.] Department of State, 

Washington, April 19, 1853. 

Sir: You will receive with this dispatch a copy of a communication 
made on the 20th ultimo to the President of the United States, by Mr. 
George Law, of New York, and a copy of a correspondence accom- 
panying the same, presenting a case not only of annoyance, but of in- 
jury to our citizens and embarrassment to our commerce. 

The documents now sent supply all the facts in the case which have 
come into the possession of the department. From them it appears 
that one of the United States mail steamships, the "Ohio," in the pros- 
ecution of her usual and lawful voyage, with a clean bill of health, 
(and, as was demonstrated in the sequel, without reasonable ground of 
suspicion that there existed on board of her any disease that ought to 
have subjected her to an hour's quarantine,) was forcibly and unneces- 
sarily detained for two or three days at or near the port of Havana, 
deprived of intercourse with the shore, and her commander, Lieutenant 
Hartstene, an officer of the United States navy, denied even the privi- 
lege of communicating by letter with the American consul — all the 
circumstances set forth in the statement accompanying the correspond- 
ence, (which, but for an accident that is described, would have been 
signed by the whole ship's company and the passengers, upwards of 
400 in number) exhibiting an apparently inexcusable exercise of power, 
disrespectful to our flag and oppressive towards our people. 

The case thus presented was one which, in my judgment, called for 
the prompt interposition of our government. I consequently sought an 



76 CASE OF THE BLACK WARRIOR, ETC 

interview with Sefior Don Calderon de la Barca, the Spanish minister, 
and placed in his hands a copy of the papers above referred to. As 
he had no information on the subject, but was expecting intelligence in 
regard to it from the authorities of Cuba, I delayed communicating 
with you and directing you to call the attention of the home government 
to the matter until that information could be obtained. 

A few days since Mr. Calderon furnished me with an extract of a 
letter to him from the Captain General of Cuba, which he regarded in 
some degree as private. Among the papers accompanying this dis- 
patch you will find a copy of that extract. By examining it you will 
at once perceive that it does not in material points controvert the facts 
set forth in the complaint to this department, nor is it at all satisfactory 
to the President. 

The two strong grounds of complaint and sources of injury are, first, 
that the "Ohio" was detained for two or three days on her trip from 
Aspinwall to New York, touching at Havana, under pretence of en- 
forcing the quarantine laws against her, not only contrary to the uniform 
practice in regard to the mail steamers employed in this service, but 
after the "Ohio" had shown a clean bill of health, and without any 
evidence of contagious disease on board, or any inquiry into her condi- 
tion as to the health of her passengers and crew. After a vexatious 
delay an examination into the condition of the "Ohio" was made, 
(which should have been done before her arrest,) and it was found that 
there was no cause for subjecting her to quarantine. The Captain 
General, even on his own statement of the affair, has, in my opinion, 
entirely failed to excuse the conduct of the authorities of Havana 
towards the "Ohio." Though I am unwilling to characterize their con- 
duct as intentionally vexatious I cannot but regard it as unjustifiable ; 
and, being so, I anticipate that the government of her Catholic Majesty 
will be willing and ready to repair the injury sustained by the owners 
of the steamer. You are instructed to demand reparation for the injury 
thus sustained. 

It is stated in the Captain General's letter to Mr. Calderon that he 
has consented to allow our consul at Havana free access to his person. 
This avails nothing so long as our injured citizens are denied access to 
our consul in order to make him acquainted with their grievances. 

In the papers submitted to Mr. Calderon it is distinctly stated that 
the officers of the "Ohio" were not permitted to have intercourse with 
the American consul. This allegation is not denied by the Captain 
General. There is no comment in his letter to Mr. Calderon upon this 
extraordinary fact, no denial of the allegation, and of course no at- 
tempted apology. Merely as an act of discourtesy it is a matter of 
grave complaint ; and, as it aggravated the wrong by prolonging the 
unjustifiable detention of the "Ohio," you will press it upon the atten- 
tion of the home government, not only as connected with the claim for 
indemnity, but as a proceeding calculated to disturb the existing friendly 
relations between Spain and the United States. 

This case not only calls for prompt redress, but will furnish an occa- 
sion for urging upon Spain the wisdom of entering into some proper 
arrangement for preventing the too often recurring vexations which the 
United States experience in that quarter. She cannot but listen re- 



CASE OF THE BLACK WARRIOR, ETC 77 

spectfully to any suggestions having for their object to disembarrass 
our commerce with one of her colonial possessions in such close prox- 
imity to the United States, and to guard against occurrences calculated 
to impair the amicable relations of the two nations. 

You are directed, upon the receipt of this dispatch, to address a note 
upon the subject to the Minister of Foreign Relatiojis, acquainting him 
with the sincere regret the President feels at being called upon, so soon 
after entering upon his duties as Chief Magistrate of the Union, to re- 
monstrate against an occurrence which is, in some respects, not unlike 
the recent case of the "Crescent City." 

You will urge, in as forcible language as official courtesy will author- 
ize, upon the government of her Catholic Majesty, the claim for an in- 
demnity for the damages sustained, and obtain from that government 
an assurance that the Captain General will be instructed to enforce 
upon the subordinate authorities in Cuba a course of conduct more in 
accordance with those rules which are essential to an unembarrassed 
commercial intercourse, and more regardful of the rights and property 
of American citizens. 

Propositions have heretofore been submitted for some special regu- 
lations by treaty in regard to the commercial intercourse between the 
United States and Spain. A communication on this subject was made 
to Mr. Calderon, on the 5th of February last. I transmit herewith an 
extract from that communication, which will show you the objects of 
the proposed convention. It is desired to ascertain how far her Catho- 
lic majesty is disposed to entertain and to favor those propositions. It 
is confidently believed that proper treaty stipulations on that subject 
would go far to prevent the occurrence of difficulties, which hitherto 
have been too frequent, and of a character to disturb the peaceful rela- 
tions of the two countries. 

By the accompanying notices, cut from several American newspa- 
pers, you will see that some public excitement exists on the subject of 
another alleged "outrage" upon the American flag, in the case of the 
American schooner "Manchester," Captain Sterling, near the island of 
Cuba. The animadversions of the press you will perceive are very 
severe ; but the department has no account of the circumstances beyond 
what you will find contained in the annexed copy of an extract of a 
letter from Mr. Sharkey, the consul of the United States at Havana, of 
the 7th instant, and of a letter to him from the captain and mate of the 
"Manchester," which was enclosed in the consul's communication. It 
will be your duty, however, to direct the minister's attention in a pro- 
per manner to this transaction, respecting which further instructions 
will be transmitted, if deemed necessary, after the receipt of any addi 
tional information in regard to it. 

I am, sir, &c, 

W. L. MARCY. 

D. M. Barringer, Esq., &c, &c, &c, Madrid. 



78 CASE OF THE BLACK WARRIOR, ETC 

U. S. Mail Steamship Company, New-York, 

March 20, 1853. 

Sir: I have the honor to transmit to you, herewith, the correspond- 
ence between Lieutenant Hartstene, United States navy, commanding 
United States mail steamship Ohio, and Judge Sharkey, United States 
consul at Havana. This correspondence furnishes the details of ano- 
ther outrage upon the flag and commerce of this country, committed 
by the authorities of Havana, and which I beg leave to bring to the 
attention of our government. 

Repeated insults and aggressions, on previous occasions, against the 
commission of which the ships, persons, and property, of American citi- 
zens have as yet been afforded no protection or redress, are renewed at 
any moment that caprice or hostility may dictate, to the great detriment 
of our commerce with the island of Cuba, in violation of treaty stipula- 
tions, and in disregard of the rights and interests of American citizens. 

In the present instance the Ohio was detained three days in the port 
or vicinity of Havana, in the most wanton manner, and under circum- 
stances degrading to our national flag; surrounded by a guard, all 
communication with the shore interdicted, and Captain Hartstene re- 
fused permission to communicate with the American consul, without 
the slightest excuse for such an outrage, the vessel exhibiting a clean 
bill of health, and having no contagious or infectious disease on board, 
and only such sickness (the Panama fever, the intermittent or fever 
and ague of our own climate) as has never before been subject to quar- 
antine or detention. 

I need not assure you that with the United States California mails 
on board, two millions and a half of treasure, and a large number of 
passengers, all American citizens, or the property of American citizens, 
this unwarrantable detention was the source of the greatest uneasiness, 
inconvenience, and loss to the trade and business of shippers and the 
public generally. I enclose also, for the information of our government, 
a statement drawn up, at the request of the passengers on board the 
Ohio, by B. McAlpine, Esq., formerly a citizen of Alabama, of standing 
and respectability, and an acquaintance of the Hon. W. R. King, and 
which would have been signed by all the passengers, had not Mr. 
McAlpine been detained on the island beyond the sailing of the Ohio, 
whilst on a visit to Colonel King. 

I have the honor to be, very respectfully, your obedient servant, 

GEORGE LAW, President. 

His Excellency Franklin Pierce, 
President of the United States. 



U. S. Mail Steamer "Ohio," 
In Quarantine, Havana Harbor, March 10, 1853. 
Sir: I regret exceedingly that the unwarranted and unprecedented 
conduct of the authorities of this place, in quarantining this steamer, 
should make it necessary for me to protest against this outrage, and to 
ask your intercession ; but, as I have on board a large and valuable 
amount of property, and the United States mails, I cannot do otherwise 



CASE OF THE BLACK WARRIOR, ETC. 79 

than to at least state facts, that they may reach the supreme ruler of 
the island. 

This steamer left Aspinwall on the morning of the 5th instant, with 
four hundred and fifty-six passengers, about one hundred of whom were 
discharged railroad men, out of which number about twenty were sick 
with the Panama fever, (well known not to be contagious.) Since that 
time, to our anchorage this morning in this port, there has been no other 
case, and all the invalids are convalescing, with the exception of one 
very old man. I pledge my word, and that of the surgeon of the ves- 
sel, that there has been no other disease on board, and that there have 
been no deaths. 

Every steamer that ever entered this port from Chagres or Aspin- 
wall has had cases of the fever, and this is the first instance of quaran- 
tine for it. I must, therefore, most solemnly protest against the injus- 
tice of having United States mails and property delayed on so frivo- 
lous a pretext, and to demand, through you, that all the privileges and 
facilities guarantied, by treaty, to the vessels of the United States, be 
extended to this steamer. If continued in quarantine, we shall be de- 
tained here some four or five days, taking in sufficient coal to reach our 
destination, as we have only forty-five men that can be employed at 
that work. 

Respectfully, &c, 

H. J. HARTSTENE, 
Lieutenant U. S. Navy, commanding "Ohio." 

Judge Sharkey, 

U. S. Consul for Havana. 

P. S. — In continuance of the obstructions which this tyrannical and 
overbearing government have for sometime been opposing to steamers 
of this line, in charge of United States officers, and conveying her 
mails, we, after having been allowed to remain near our coal depot 
just long enough to commence work, and also some necessary repairs 
of machinery, are now ordered, at the expense of some ten tons of coal, 
and the partial loss of another day, to remove to the quarantine ground. 
Now, sir, as a lieutenant of the United States navy, acting under the 
orders of my government, I again most emphatically protest against all 
and each of the restrictions that have been imposed upon this vessel, 
that entered this port in distress, (short of coal,) with a clean bill of 
health, and having no deaths. 

Respectfully, &c, 

H. J. HARTSTENE, 
Lieutenant U. S. Navy, commanding "Ohio." 

Friday Morning, March 11. 



U. S. Mail Steamship Ohio, 

Havana, March 11, 2 p. m. 

Sir: I herewith enclose you a communication of yesterday's date, 
which, up to the present time, I have been denied the privilege of for- 
warding; and I have now furthermore to state, that to the injuries 



80 CASE OF THE BLACK WARRIOR, ETC 

which an unjust detention of this vessel has caused, have been offered 
insults of the grossest nature to myself and the surgeon of this steamer 
by the informal manner of relieving her from a quarantine imposed 
contrary to the usages of the port, in defiance of our assertions, and 
without any examination of the ship on their part, until, within the last 
hour, we were visited by a Spanish naval surgeon in a private man- 
ner, to whose kind intercession we are, I presume, indebted for the 
concession now made to us (after a detention of thirty-two hours) of 
the usual facilities of the port. Understanding that a report is in exist- 
ence that I deceived the pilot, when entering the harbor, with regard 
to the state of this vessel, I unhesitatingly pronounce it a falsehood, as 
base as been our treatment since our arrival. 

I have to ask that a copy of these communications may be sent to 
the Captain General, with a request that he will inform me why we 
have been thus abused. 

Respectfully, &c, 

H. J. HARTSTENE, 
Lieutenant V. S. Navy, commanding "Ohio." 

Judge Sharkey, 

U. S. Consul for Havana. 



Consulate of the United States, Havana, 

March 12, 1853. 

Dear Sir : I this morning received your communication, in which 
you complain of the unnecessary detention of your vessel, caused by 
placing her in quarantine, and desire that the Captain General may be 
informed of this, and, if possible, that an answer may be obtained Irom 
him. The matter will be duly attended to, but I must say that there 
can be but little hope of obtaining an answer. If, however, I should be 
disappointed, it shall be duly communicated. 

I am, sir, with respect, yonr obedient servant, 

W. L. SHARKEY. 

Capt. H. J. Hartstene. 



United States Mail Steamer "Ohio," 

. New York, March 18, 1853. 

Dear Sir : I regret exceedingly that this steamer, though perform- 
ing well, has been frustrated in the due delivery of her mails by an 
unwarranted detention of two days in the port of Havana by the au- 
thorities, whom, you will perceive from their subsequent acts, did it 
to gratify their piques, and to further display what little respect or 
regard they have for a government that will countenance them as a 
civilized and honorable nation. 

We left Aspinwall on the forenoon of the 5th instant, with the Cali- 
fornia mails, treasure, and 456 passengers, and at midnight of the 9th 
were off the Moro, awaiting daylight, agreeable to the regulations of 
the port. Shortly after mooring to the buoy near our coal depot, we 



CASE OF THE BkACK WARRIOR, ETC 81 

Were visited by the health officer ; and, in defiance of a clean bill of 
health, and being distinctly informed by myself and surgeon that there 
were no contagious or infectious diseases on board, nor had there been any 
deaths; that we had but a few more than the usual proportion of cases 
of Panama fever, all which, with one exception, had improved during 
the passage ; and that we had the United States mails on board, were 
ordered to remain where we were in quarantine, communicating with 
no one, and that we could have coal only by taking it from lighters with 
our own crew, which, in our crowded state, would have caused much 
delay. Mr. Johnson, with his usual promptitude and energy, after hav- 
ing exhausted all means of relieving us from this outrageous treatment, 
commenced supplying us : and when fairly under way with this, as well 
as some necessary work on the machinery, we were, in continuance of 
their overbearing persecutions, ordered to remove to the quarantine 
ground, nearly a mile distant, for which it was necessary to cease ope- 
rations ; and, when ready for starting, we were (after having been in 
the harbor thirty-two hours) suddenly and informally relieved from all 
restrictions. For this indulgence we are indebted to Doctor Don Jorge 
Ledo, of her Catholic Majesty's navy, who nobly, disinterestedly, and 
unofficially, examined the steamer at the risk of being sent from the 
island, should there be any contagion on board. 

We were, you will perceive, quarantined without there being any 
measure taken to determine the correctness of the surgeon's and my 
own assertions, and then relieved on an impartial and private survey, in 
total disregard to all feelings of delicacy or respect for us or our flag. 
Your obedient servant, 

H. J. HARTSTENE. 

M. O. Roberts, Esq., 

Agent U. S. M. S. S. Company, N. Y. 

P. S. — We left Havana at half-past nine on the evening of the 12th 
Instant, and arrived at Sandy Hook at 6 20 p. m. on the 17th, where, 
in consequence of a dense fog, we were compelled to anchor. I en- 
close you, herewith, copies of the correspondence between Judge 
Sharkey, United States consul at Havana, and myself, in relation to the 
detention of the " Ohio" by the authorities of that port. 
Yours, respectfully, 

H. J. H. 



The following statement was drawn up by B. McAlpine, esq., for- 
merly of Alabama, at the request of the passengers on board of the 
United States mail steamship Ohio, while detained by the unwarranta- 
ble conduct of the Cuban authorities ; but when the steamer was per- 
mitted to come to her wharf Mr. McAlpine, having proceeded at once 
to visit Col. King, did not return in season to take the Ohio on her voy- 
age to New York ; otherwise, Mr. McAlpine gives the assurance, the 
•statement would have been signed by every passenger, 456 in number. 

6 



82 CASE OF THE BLACK WARRIOR, ETC 

Bay of Havana, March 12, 1853. 

The undersigned, passengers on board the mail steamship Ohio, bound 
for New York, deem it a duty we owe to the citizens of the United 
States and the authorities at Washington, to give a correct history of the 
conduct of the officers of this port on the arrival of the ship. 

The ship arrived at the Moro castle early on the morning of the 10th 
instant, and was boarded by a pilot, who conducted her near to where 
she had to coal. After waiting some time the health and port officers 
came alongside, but did not enter the ship. They were met by the 
captain, Lieutenant Hartstene, United States navy, and the surgeon of 
the ship, and informed that there was no contagious disease on board 
the ship, and that there had been no death on the voyage. They were 
also informed that the ship had on board the United States mails, and 
that she required 400 tons of coal to enable her to proceed with the 
same. The port officer declared that the ship must land at the wharf 
on which her coal was deposited, and placed an armed guard to pre- 
vent the passengers from going on shore or having any communication 
therewith. The captain then requested that a letter should be con- 
veyed to the American consul on shore, which was totally refused. All 
communication was entirely cut off from shore, and the authorities re- 
fused to allow any aid from the shore to coal the vessel, stating that the 
laborers on board must coal the vessel by lighters. The captain made 
several efforts, through the agency of a gentleman who came within 
speaking distance, to get the order rescinded, assuring the authorities 
through him that there was no disease on board, but received for an- 
swer that the ship must remain where she lay, and take her coal on 
board with her own laborers. The captain again requested to have 
communication with the American consul and the company's agent, 
informing the authorities that there were important documents on board 
for the Vice President of the United States of America, Mr. King, and 
the American consul. They were informed at the same lime that there 
were about fifty passengers who desired to go to New Orleans ; to all 
of which they paid no sort of respect. 

Early on the morning of the 11th instant the port officers came 
within speaking distance and ordered the ship into quarantine, distant 
about two miles from where she then lay. At the time of this order 
the captain had two barges alongside with coal. He informed the 
writer of this that he intended to obey the order as soon as the coal 
was on board, the consequence of which would have detained the ves- 
sel two or three days longer, being compelled to coal by the tardy pro- 
cess of lighters. At 4 o'clock on the afternoon of the 11th, a physician, 
said to belong to the Spanish navy, seeing our situation, and having 
more of the milk of human kindness than many of his countrymen, vol- 
unteered to come on board, and promised the board of health of Ha- 
vana that if there was contagion on board he would remain on the ship 
as passenger for New York. In a few moments after the physician 
came on board, the ship was set at liberty, and very soon after the 
passengers were permitted to go on shore by paying one dollar for a 
pass each. We have endeavored in the above to give a correct history 
of the proceedings of the officers of this port, and as American citizens 
we are compelled to condemn their actions from beginning to end. We 



CASE OF THE BLACK WARRIOR, ETC 83 

are grieved to think that while our own government most scrupulously 
adheres to her treaty stipulations with all other powers, the government 
of Spain, through her officers, so far forget the obligations they owe to 
our government as to harass her citizens who happen to travel through 
their country, and prevent the free passage of the United States mails 
from point to point by such obstructions as we have above recited, and 
which were the more annoying and vexatious from the fact that no 
cause existed for them, and that no ship, so far as we can learn, has 
been quarantined under similar circumstances. Altogether the steamer 
was detained in the port of Havana three days. 



[Extract.] 



Department of State,, 

Washington, February 5, 1853. 

Sir : I have been directed by the President to bring to your consid- 
eration the subject of the commercial relations between the United 
States and Spain, with a view to their regulation by treaty. The treaty 
of 1795 is, what it purports to be, not a commercial treaty, but a treaty 
of " friendship, limits, and navigation." Such of its provisions as re- 
late to commercial intercourse are few in number, and have, for the 
most part, specific reference to the state of things which then existed, 
and has since materially changed. It was, however, apparently the 
intention of the two governments to make their commercial interests 
the subject of negotiations at some future period ; and in the 22d arti- 
cle it is provided, that " the two high contracting parties, hoping that 
the good correspondence which happily reigns between them will be 
further increased by this treaty, and that it will contribute to augment 
their prosperity and opulence, will in future give to their mutual com- 
merce all the extension and favor which the advantage of both coun- 
tries may require." 

In fulfilment of this anticipation the commercial intercourse between 
Spain and her possessions in this hemisphere, on the one side, and the 
United States on the other, has greatly increased, but nothing has 
been done for its protection or regulation by conventional arrangements. 
The treaty of 1795, if applicable to the colonies of Spain, which is not 
admitted by the government of her Catholic Majesty, would by no 
means meet the exigencies of the commerce which has grown up since 
that time. 

The United States government has never acquiesced in this limita- 
tion of the treaty of 1795 ; but so long as it is maintained by the govern- 
ment of her Catholic Majesty the main object of a treaty is lost, which 
is, by mutual agreement, to regulate the matters to which it relates. 
The commercial relations of the United States with the Spanish islands 
near the American continent are of great importance, and daily becom- 
ing more so, and interests of great moment are involved in them. 
/There is, for instance, scarcely any foreign port where the consular 
office is so important as at Havana. Even if the treaty of 1795 ex- 
tended to Cuba, the summary provision which it makes for the consular 



84 CASE OF THE BLACK WARRIOR, ETC 

office would fall short of what is desirable in the existing state of things. 
It would be a matter of great mutual convenience to the local gov- 
ernment of Cuba, to the government of the United States, and to all 
persons having occasion to resort to the island, if the consul were al- 
lowed to extend his functions to others than tradesmen and seamen, 
(to which they are now confined,) and to exercise some of the powers 
of a diplomatic agent. The almost vice-regal authority habitually con- 
fided to the Captain General of Cuba, removes the only obvious objec- 
tion to such an arrangement. It would seem, in fact, that the right of 
treating with the representative of a foreign government was neccessary 
to the due exercse of the great discretionary powers with which the 
Captain General is clothed. To confine the consul to the ordinary 
duties of the consular office is to deprive the Captain General of one 
of the greatest facilities for carrying on his government. Recent events 
strikingly illustrate the justice of these remarks. Had the United 
States consul been authorized to treat with the Captain General, the 
late difficulties relative to the " Crescent City," which at one time as- 
sumed a formidable character, would not probably have arisen. 

There are other subjects of much importance which require to be 
regulated by convention between the two governments : among these 
are the vexed question of discriminating tonnage duties, the rights of 
American citizens residing in the colonies under a " carta de domicilia," 
the administration of the estates of deceased Americans, the port 
charges on vessels engaged in trade with the Spanish islands, and 
postal communication. It is highly desirable that interests so import- 
ant should be the subject of express stipulation, and not dependent on 
usage, which may be revoked at pleasure and the discretion of authori- 
ties frequently changed. The President, in proposing to negotiate a 
convention on these subjects has no motive but to obviate causes of 
dissension and to promote a good understanding between the two 
governments. Though the United States are remote from Spain, her 
colonies are our near neighbors, and every consideration that ought to 
influence the conduct of powerful States applies to our intercourse with 
them. 

I avail myself of this opportunity to renew to you the assurance of 
my distinguished consideration. 

EDWARD EVERETT. 
Senor Don A. Calderon de la Barca, Sfc, ^c, &fc. 



[Extract.] 



[No 29.] Consulate of the United States, Havana, 

April 7, 1853. 

The reported search of the American schooner Manchester seems to be 
causing some excitement ; and that the government may be placed in 
possession of all the evidence that this office can furnish, I enclose you 
a letter received by me from the captain and mate. This contains all 



CASE OF THE BLACK WARRIOR, ETC 85 

the information I have on the subject ; and you will perceive that it is 
very imperfect. The letter was delivered to me by a Spanish pilot, 
several days after its date, who demanded the sum of thirty dollars, 
which, of course, I did not pay. The vessel did not touch at this port. 

# * # # # * * # 

I have the honor to be, with great respect, your obedient servant, 

W. L. SHARKEY. 
Hon. Wm. L. Marcy, 

Secretary of State. 



Consulate of the United States of America, Havana. 

On this seventh day of April, A. D. 1853, personally came and ap- 
peared James Otis, master of the ship Harriet, of Bath, (Maine,) and 
made the following statement, which he would have made the day the 
said ship was entered in the consulate of the United States, but he, 
said master, saw that the consul was busy investigating a case against 
some sailors, to wit : On the thirty-first day of March last, being about 
thirty miles to the westward of the Double-headed Shot Keys, early in 
the morning, I saw a steamer and a hermaphrodite brig about seven or 
eight miles to the northward of me ; the steamer was running different 
courses, but after a short time she commenced to steer about the same 
course that I was ; after an hour, or an hour and a half, I saw that she 
made sail ; an hour after that she fired a shot, which I saw strike in the 
water, right in the range of us ; I then ordered our colors set ; but be- 
fore the colors were up, she fired again ; we then took in sail and 
hove to; after the steamer got to within about a mile of us, we saw that 
she had English colors flying ; she then soon came up and hailed us, and 
asked where we were from and where bound ; I told them we were 
from Savannah, bound to Havana ; some officer on board then said he 
was going to send a boat on board of us ; I told him I did not care what 
he sent ; soon afterwards the boat came, with two officers in her ; I 
was in my cabin ; the mate came in and said the officers wanted to 
see me ; I went out, and they said that they wanted to take a look 
around the vessel ; I told them they had taken the liberty to stop me 
on my way, and I supposed they would do as they had a mind to ; I 
asked them if anything new had taken place, that they were cruising, 
stopping a vessel on her lawful voyage ; they said that they were 
cruising to see that their treaty was not infringed ; after they had 
searched the vessel all round the house, forward, and looking down the 
hatches, they asked me for the ship's papers ; I allowed them to see 
them, but observed that I did not know of any right they had to de- 
mand them ; afterwards one of the officers went down between decks, 
and, lastly, went into their boats and left us ; I was detained about one 
hour and a half. 

JAMES OTIS. 

Sworn to and subscribed before me by the said master. 

W. L. SHARKEY, 

Consul of the United States. 



86 CASE OF THE BLACK WARRIOR, ETC 

I, William L. Sharkey, consul of the United States of America for 
the city of Havana, and the dependencies thereof, do hereby certify- 
that the copy of a sworn statement, written on this and the two prece- 
ding pages of this sheet of paper, is a true and correct copy of the origi- 
nal of record in this consulate. 

In testimony whereof, I hereunto subscribe my name and affix the 
seal of my office, at Havana, this seventh day of April, A. D. 1853. 

W. L. SHARKEY, [l. s.] 



Mr. Barringer to Mr. Marcy. 

[Extract.] 

[No. 144.] g Granada, June 10, 1853. 

Sir : Your dispatch No. 77, of the 19th April last, reached the lega- 
tion during my temporary absence from Madrid. I immediately caused 
a copy of the same to be forwarded to me at this city. 

On the 6th instant I addressed to the Spanish government a note on so 
much of the same as relates to the affair of the United States steamship 
" Ohio." A copy of this note will hereafter be communicated to the 
Department of State, with a copy of the answer of her Catholic Ma- 
jesty's Minister of State for Foreign Affairs, when received. Judging 
from my knowledge of the past and present policy of the Spanish gov- 
ernment in reference to the affairs of the island of Cuba, and especially 
those connected with the commercial intercourse between that island 
and the United States, I regret to say that I anticipate no very satis- 
factory answer to this new demand for explanation and indemnity. It 
is the settled purpose of Spain to keep the island as independent as 
possible of all connexion with the United States. To this end the Cap- 
tain General is intrusted with almost sovereign authority in the gov- 
ernment of the island, and the government here are always disposed to 
sanction whatever he may do or cause to be done — or, rather, they 
seldom, if ever, disapprove any measure he may have adopted, and 
which, in his opinion or that of his subordinates, may be deemed neces- 
sary for the protection and security of the island. 

On my return to Madrid, in the course of a few days, I will also call 
the attention of her Majesty's Minister of State to the case of the Amer- 
ican schooner "Manchester," Captain Sterling, near the island of Cuba, 
referred to in your dispatch. 

I have the honor to remain, with the highest respect, sir, your obe- 
dient servant, 

D. M. BARRINGER. 
Hon. W. L. Marcy, 

Secretary of State. 



<CASE OF THE BLACK WARRIOR, ETC 87 

Mr. Barringer to Mr. Marcy. 
[Extract.] 

fNo. 147.1 Legation of the United States, Madrid, 

L J July 8, 1853. 

Sir : I have the honor to transmit, herewith, copies of my note of 
the 6th ultimo, of the answer of her Majesty's government of the 15th 
ultimo, and of my reply to the same of the 23d ultimo, on the subject 
of the affair of the detention of the United States steamship " Ohio" at 
the Havana, in the month of March last. 

It will be seen that I have not regarded the answer of her Majesty's 
government as satisfactory, in reference to the demands of either for 
explanation or indemnity. 

Nothing more has been received or heard from the Spanish govern- 
ment on this subject, except that, in a conference with the President of 
the Council, who is also Minister of Foreign Affairs, he expressed his 
regret at the repeated occurrence of similar difficulties and embarrass- 
ments with our steamships at the Havana, and the earnest desire of her 
Majesty's government to maintain the most friendly relations with the 
United States, but no change of opinion as to the case of the " Ohio." 
***** 

Hon. Wm. L. Marcy, 

Secretary of State. 



Legation of the United States, Madrid, 

June 6, 1853. 

Sir : I am directed to bring to the notice of her Majesty's govern- 
ment another unpleasant occurrence connected with the service ot the 
United States mail steamers in the port of Havana — an occurrence 
presenting not only a case of annoyance, but of injury to our citizens, 
and embarrassment to our commerce. 

It appears from the accompanying statement, which I have caused 
to be carefully prepared from authentic documents, that one of the 
United States mail steamships, the " Ohio," in the prosecution of her 
usual and lawful voyage, with a clean bill of health, (and, as was de- 
monstrated in the sequel, without a reasonable ground of suspicion that 
there existed on board of her any disease that ought to have subjected 
her to an hour's quarantine) was forcibly and unreasonably detained for 
two or three days at or near the port of Havana, deprived of intercourse 
with the shore, and her commander, Lieutenant Hartstene, an officer of 
the United States navy, denied even the privilege of communicating, by 
letter, with the United States consul. 

All the circumstances exhibit an apparently inexcusable exercise of 
power, disrespectful to our flag, and oppressive towards our people. 

The vessel was thus detained under pretence of enforcing the quaran- 
tine laws against her, not only contrary to the uniform practice in re- 
gard to the mail steamers employed in this service, but after she had 
shown a clean bill of health, and without any evidence of cases of con- 



OO CASE OF THE BLACK WARRIOR, ETC 

tagious disease on board, or any inquiry into her condition as to the 
health of her passengers and crew. 

After a vexatious delay, an examination into the condition of the 
"Ohio" was made, (which should have been done before her arrest,) 
and it was found that there was no cause for subjecting her to quaran- 
tine. It further appears, that, although consent has been given tor free 
access of the American consul to the person of the Captain General, 
this avails nothing so long as our injured citizens are denied access to 
our consul in order to make him acquainted with their grievances, and 
that in the case now under consideration the officers of the "Ohio" 
were not permitted to have intercourse with the American consul. 

It was an act of discourtesy, furnishing matter of grave complaint 
and aggravated the wrong already committed by prolonging the unjus- 
tifiable detention of the vessel. 

I am directed to express the sincere regret felt by the President at 
being called upon, so soon after entering upon his duties as Chief Ma- 
gistrate of the Union, to remonstrate against an occurrence which is, in 
some respects, not unlike the recent case of the " Crescent City." 
Though unwilling to characterize the conduct of the authorities at the 
Havana as intentionally vexatious, the American government cannot 
but regard it as unjustifiable, and as calculated to disturb the existing 
friendly relations between Spain and the United States. 

In presenting the facts of this case, I am instructed to demand from 
her Majesty's government indemnity for the damage sustained by the 
owners of the " Ohio" for her detention as herewith set forth, and to 
obtain from the same an assurance that the Captain General of Cuba 
will be instructed to enforce upon the subordinate authorities in Cuba 
a course of conduct more in accordance with those rules which are 
essential to an unembarrassed commercial intercourse, and more regard- 
ful of the rights and property of American citizens. 

It is confidently anticipated that her Majesty's government, equally 
desirous with that of the United States of removing alJ grounds of just 
complaint between both nations, will be willing and ready to accede to 
these demands. 

I avail myself of this occasion to lenew the assurance, &c, &c. 

D. M. BARRINGER. 

His Excellency Don Francisco Sersitndi, 

President of Council and Minister of State. 



Statement of facts concerning the unwarrantable detention of the United States 
mail steamship " Ohio'''' at the port of Havana, in April, 1853. 

The United States mail steamship "Ohio," from Aspinwall for New to 
York, arrived at the port of Havana on the night of the 9th April, and 
entered that port on the morning of the 10th, with the United States 
mails from California, two million five hundred thousand dollars of gold, 
and four hundred and fifty-six passengers on board. 

Upon being visited by the health and port officers in their boat 
shortly after, those officers were met by the captain and surgeon of the 



CASE OF THE BLACK "WARRIOR, ETC. 89 

ship, who furnished them with the ship's clean bill of health, and dis- 
tinctly informed them that there were no contagious nor infectious dis- 
eases on board, and that there had been no deaths, and that, of the few 
cases of ordinary Panama fever (terciava) on board, all had improved 
on the voyage with the exception of one old man. They were also 
informed that the ship had the United States mails on board, and that 
she required coal to enable her to proceed with the same. 

In spite of this information, the health officers, without making any 
further investigation of the condition of the ship, ordered the captain to 
remain where he was, not to approach the wharf where the coal for the 
ship was deposited, and not to communicate in any way with the shore. 
An armed guard was stationed to prevent the passengers from leaving 
the ship ; and the captain, Lieutenant Hartstene, of the United States 
navy, upon his personal request to transmit a communication to the 
American consul at that port, was refused that privilege. 

The authorities also refused to allow any aid from the shore to place 
coals on board the vessel, saying that the laborers on board must coal 
the ship by means of boats — a process involving unnecessary expense 
and great delay. 

After some time, the captain of the ship, by means of a gentleman 
who came within speaking distance, requested again to be allowed to 
send a letter to the American consul, but no attention was paid to his 
request. 

On the morning of the 11th of Ap*ii> when the operation of getting 
the coal on board had already begun, the officers of the port came again 
within speaking distance of the vessel, and ordered her to remove to 
the ordinary quarantine ground, at some distance from where she then 
lay ; to do which it was necessary to cease the operation of taking in 
coal, and to generate steam at great additional expense and delay. 
However, the captain of the steamer prepared to obey ; but, to use his 
own words, " when ready for starting, we were suddenly and informally 
released from all restrictions." For this favor the ship's company were 
indebted to Doctor Don Jorge Ledo, surgeon of her Majesty's fleet at 
Havana, who, seeing the unusual and unjustifiable situation of the ship, 
" nobly and disinterestedly" volunteered to go on board and examine 
her, saying to the officers of the, board of health, that if there should 
prove to be any contagion on board he would remain on the ship. 

A few minutes after this gentleman had left her, at about 4 o'clock 
in the afternoon of the 11th April, the ship was set at liberty. 

And Captain Hartstene concludes his narrative to the owners of the 
ship with these words : " We were, you will perceive, quarantined 
without there being any measures taken to determine the correctness 
of the surgeon's and my own assertions, and then relieved on an impar- 
tial and private survey, in total disregard to all feelings of delicacy or 
respect for us or our flag." 

Altogether, the steamship was detained in the port of Havana, 
according to the statement of her owners, for three days. 



90 CASE OF THE BLACK WARRIOR, ETC. 

[Translation.] 

First Department of State, 

Palace, June 15, 1853. 

Sir : I have had the honor to receive your excellency's note, dated 
the 6th instant, which was accompanied by a relation of what is sup- 
posed to have occurred at the Havana, in connexion with the momen- 
tary delay in that port of the United States mail steamer " Ohio." 

The government of the Queen, my lady, might reasonably hope that 
such an occurrence — so simple in itself, and subject in every point to 
the sanitary regulations which are observed scrupulously, and without 
exception, in all the ports of the island of Cuba, with the vessels of all 
nations — would not take an official character, and much less that of a 
reclamation by the government which your excellency represents. 

Nevertheless, taking into consideration that the owners of the said 
steamer, who are also owners of the " Crescent City," to which your 
excellency alludes in your note, have manifested before now their de- 
cided purpose to excite embarrassments and difficulties between the 
two countries, the government of her Majesty thought proper to antici- 
pate, and directed spontaneous and honorable explanations to Wash- 
ington, through the Spanish representative in that capital, in order to 
avoid that the mind of the President of the United States should by 
any possibility be surprised by the relation, perhaps passionate and 
■« inexact, of the director of the Steamship Company. 

The note of your excellency makes me suppose that these explana- 
tions did not arrive in time, and consequently I see myself obliged to 
reply to it. 

In order to do this, I shall begin by refuting the principal statements 
contained in the narrative which your excellency encloses to me, which 
are very far from agreeing with the data and information which have 
been communicated to me by the proper authorities of the island of 
Cuba. 

According to these data, (in this point agreeing with the narrative 
which your excellency transmits to me,) the detention of the " Ohio" 
was not three days, as is stated in your note, but thirty hours — the 
time necessary and indispensable in order to be assured whether or 
not the fever which existed on board the ship, and of which one of the 
passengers had died, had any malignant and contagious character 
which might put in peril the public health of the island. 

On making the health visit to the "Ohio," it was known by the state- 
ment itself of the physician aboard that there were various passengers 
sick of the fever which prevails on the coasts of Chagres. 

Nevertheless, the deputation of health, taking into account the pro- 
visions of the third article, chapter second, title second, of the general 
regulations of that service, determined that the vessel, which had no 
passenger for Havana (the which is worthy to be remarked) should 
remain simply isolated, passing to the quarantine station in order to 
provide herself there — with proper precautions — with the coal which 
she required. 

But in view of the reasons which the consignees of the said steamer 
set forth, soliciting that she should be permitted to go alongside one of 



CASE OF THE BLACK WARRIOR, ETC 91 

the wharves to take in the combustible, the superior board of health, 
assembled for that purpose, resolved that Don Jorge Ledo, auxiliary 
physician of the board, and first professor of the fleet, should be sent 
on board to inform himself of the state of health of the vessel, who 
made declaration that there existed, in effect, aboard of her an intermit- 
tent fever, of which one individual had died the same day of the exami- 
nation, but that this fever had no malignant nor epidemic character. 

By virtue of this, the board being desirous to conciliate, in whatsoever 
was possible, private interests with the very sacred and preferable 
interesls of the public health, permitted from that moment free pratic 
to the " Ohio ;" and in this connexion I cannot let pass unnoticed the 
unfounded statement set forth in the relation which your excellency 
encloses to me — that the vessel's having been left suddenly free from 
all restriction was owing to the efforts of Dr. George Ledo, surgeon of 
the fleet of the United States at the Havana, who lent himself disinter- 
estedly to go on board and examine her, because it is exactly this 
same Ledo, health physician, who, by the express order of the superior 
board, went on board of the "Ohio" in order to make the report which 
must serve as a basis to the resolution which the said corporation should 
adopt. 

This manner, so intentionally inexact, of presenting the fact, by the 
captain of the "Ohio," was, without doubt, with the purpose of taking 
away from the determination of the board that character of spontane- 
ousness and of meditation which it really had, in order to cause it to be 
believed that suddenly, and without any formality, said vessel was ad- 
mitted to free pratic, through the officious representations and the 
efforts of a surgeon of the fleet of the United States. 

By this simple and unimpassioned relation of what happened with 
said steamer, your excellency will easily comprehend that the deten- 
tion of the " Ohio" proceeded from the manifestations of her own 
physician ; that it was well founded, seeing that there were sick on 
board, and even that the death of one individual had occurred ; that 
she was considered suspicious only so long as there was no certainty 
had of the nature and class of the diseases, being placed voluntarily 
and without delay in free communication as soon as the report was re- 
ceived from the physician appointed for the inspection and examination 
of the sick on board; neither the deputation nor the superior board of 
health being able to dispense with such proceedings of prudence and 
precaution without infringing the clear and precise regulation which 
governs this matter. 

In this connexion your excellency has thought proper to recall the 
case of the " Crescent City," considering it as in some respects like that 
now under discussion, in order to deduce conclusions concerning the 
conduct observed by the authorities of the Havana, which, as your excel- 
lency says, is calculated to disturb the amicable relations between Spain 
and the United States. 

The only analogy which, for my part, I encounter between these two 
cases is, that in the case of the " Crescent City" the government of 
your excellency is recognised explicitly, as I flatter myself it will on this 
occasion, the right of the Captain General of the island of Cuba to 
take, by virtue of the powers with which he is invested, whatsoever measure, 



92 CASE OF THE BLACK WARRIOR, ETC. 

however restrictive may he its character, which he may consider necessary for 
the preservation of the island whose government is given him in charge. 

Then, as in the present case, that which alone was sufficient, and 
is sufficient, for the conscience itself, and the justification of the govern- 
ment of her Majesty, is, to show that the measure adopted as means 
of protection and security, whether for the defence of the island, or to 
guard her from the ravages of a contagious disease which exists, or 
which it is suspected even may exist on board a vessel, are abundant 
motives for taking those reasonable measures of precaution dictated by 
the vigilance and the duty of the authorities of the island of Cuba.* 

I do not perceive, in truth, what benefit can result to Spain and the 
United Slates from recalling events which were appreciated in their 
just value at their time, and which only signify the deliberate purpose 
of an individual to sow motives of dissension between two friendly 
governments. 

But as your excellency has judged it opportune to invoke this remem- 
brance as an argument against the authorities of the Havana, and in 
order to express fears that their conduct may appear calculated to dis- 
turb the friendly relations between the two countries, this supposition 
authorizes me to manifest to your excellency, in my turn, with all the 
frankness and faithfulness of an honest man, guided by the desire of dis- 
sipating unfavorable prejudices which might some day be converted 
into a motive of formal disagreement, that the director of the Steam- 
ship Company, Mr. Law, is he who is constantly, and without reason, 
provoking contentions and difficulties with the perverse intention of 
destroying the perpetual! intelligence which exists between the two 
governments ; that whilst no reclamation is presented to the govern- 
ment of her Majesty by the commerce of any nation of the world — of 
the many which trade with Cuba, nor by the lines of English steamers, 
nor even by the private vessels of the United States — the line which 
Mr. Law directs is that which excites and originates every day such 
lamentable difficulties. 

Necessary is it, therefore, that I should call the attention of your excel- 
lency seriously to the repeated complications which the presence of said 
steamers in the island of Cuba offers to the two governments; because, 
if this company is to be the apple of discord, the government of her 
Majesty may one day consider it preferable, for the preservation of her 
amicable relations with the United States, to withdraw the privileges 
which the steamers of the line of Mr. Law now enjoy, and subject them 
to precise and definite conditions, in the use of her imprescriptible rights 
. of sovereignty. 

With respect to the momentary detention of the "Ohio," after what I 

% have manifested, in order $f favor the entire lack of foundation for the 

$ complaint of the proprietor of this vessel, it would remain for me only 



*The grammatical or rhetorical fault in this sentence, which makes the measures adopted 
to be " the abundant motives for taking those reasonable measures," &c, is faithfully trans- 
lated as it exists in the original. 

H. J. PERRY, Translator. 

f The original is " perpetua," but there is every reason to suppose this is a clerical error, 
and should be perfecta. The translation would then be " the perfect intelligence," &c. 



CASE OF THE BLACK WARRIOR, ETC. 93 

to leave clearly written, in this note, the perfect right which Spain has, 
like every independent State, by the principles of the law of nations 
recognized by the publicists of all countries, including those of the 
United States, to establish the rules to which the vessels which arrive at 
her ports must be subject ; this right being even more respectable when 
it has reference to the preservation of the public health ; but the Ame- 
rican government is too just, and too intelligent, to ignore on this occa- 
sion principles so generally accepted, and not to easily understand that 
the superior authority of the island, of Cuba could not, in any case, in- 
terpose in a matter of the dispositions made by the board of health, 
subject to the regulations in force. 

We do not pretend, nevertheless, that these are the most perfect ; 
but such as our system is in this point, to it are submitted the Spanish 
commerce, and that of all the nations which trade with us ; it not be- 
ing possible to make an exception in favor of the United States, with- 
out the exceptions coming to be converted into the general rule ; and 
however regretful it may be for Spain not to be able to be agreeable 
to the citizens of the Union, and what is more, even when these dis- 
positions might exert an influence in the diminution of our commercial 
relations with the confederation, it would be necessary for us to submit 
ourselves to this inconvenience as a condition of the preservation of the 
public health. 

For the rest, the government of her Majesty, constant in its purpose 
of facilitating commercial intercourse in the island of Cuba, will renew 
with pleasure to the Captain General the recommendation that foreign 
vessels are to be molested as little as possible in that island. 

Very grateful it would be for me that the considerations which I 
have expressed should be of influence in the mind of the American 
government, so that it might listen in future with little confidence to 
the complaints and inexact representations of badly intentioned people ; 
flattering myself that it will do justice to the sincere desires and inten- 
tions of Spain to cultivate intimate and friendly relations with the 
United States. 

I renew to your excellency, on this occasion, the assurances of my 
most distinguished consideration, &c, 

FRANCISCO SEPtSUNDI. 

To the Minister Plenipotentiary 

of the United States. 



Legation op the United States, Madrid, 

June 23, 1853. 
Sir : I have the honor to acknowledge the receipt of your excel- 
lency's note of the 15th instant, (which, however, did not reach this 
legation till the 20th of the same,) in reply to mine of the 6th instant, 
on the subject of the detention of the United States steamship " Ohio," 
at the Havana, in the month of March last. The manifest and material 
differences in the statements of facts relative to this detention, as pre- 



94 CASE OF THE BLACK WARRIOR, ETC 

sented respectively to the governments at Madrid and Washington, 
together with the circumstance that the government of her Catholic 
Majesty, anticipating that difficulties and embarrassments might possibly 
grow out of this occurrence, had, previously to the receipt of my note, 
deemed it proper to address, in the language of your excellency, vol- 
untary and favorable (leales) explanations to the government of the 
United States through the Spanish minister at Washington, render it, 
on my part, prudent, as well as respectful to both governments, that I 
should reserve for a future occasion, if necessary, observations which, 
but for these considerations, it would now be my duty to make. It is 
to be hoped that the circumstances of the affair may be more fully and 
exactly inquired into ; and I shall be most happy if, from this exami- 
nation of the character of the note already addressed to the government 
of the United States, (of whose contents, however, I regret I am not 
more particularly apprized than through the general terms applied by 
your excellency,) this negotiation shall result in a satisfactory and ami- 
cable termination, alike honorable to both nations. Justice and truth, 
however, require that I should not omit at present to say something in 
reply to remarks of your excellency, which must have proceeded from 
misapprehension on the part of your excellency, or incorrect informa- 
tion on the part of others. It is not true, as supposed by your excel- 
lency, that the statement of facts making the ground of this complaint 
originated with Mr. George Law, the owner, or one of the owners, of 
the line of steamships to which the " Ohio " belongs. 

Whilst the government of the United States must be in all cases 
the sole judges, on their own responsibility, as to the authenticity of 
the sources of any knowledge on which they may act, I feel it due to 
the parties concerned to state, that the information on which they have 
acted in this case has been obtained from the officers and passengers 
aboard the vessel at the time of the occurrence. Mr. Law states no 
particular, except as to the length of time the vessel was detained, (and 
this is not of his own knowledge,) which he alleges to have been three 
days. In this, not being present, he may well have been mistaken by 
misapprehending the account given by Lieutenant Hartstene, of the 
United States navy, then in command, who states, that " the Ohio, at 
midnight of the 9th instant, (March,) was off the Moro," and that she 
left Havana" at half-past nine of the evening of the 12lh instant ;" thus 
making the entire detention at that port three days, less two and a 
half hours. 

But this same officer states, (in this, as to the length of time only, 
nearly agreeing with the statements in your excellency's note,) that the 
actual time of detention caused by the unnecessary and unreasonable 
conduct of the local authorities was thirty-two hours. 

But the length of time itself is not a material consideration, except 
as to the measure of injury sustained by the detention. If the vessel 
had been detained only one hour by frivolous pretexts, or by the un- 
necessary and vexatious, and groundless conduct of the authorities, the 
wrong would be as clear, though the injury might not be so great, as 
if she had been thus detained three days. In both cases the principle 
of objection would be the same. 



CASE OF THE BLACK WARRIOR, ETC 95 

The gist of the complaint here is, that the usual course of proceeding 
in such cases having been pursued by the authorities ; with a clean bill 
of health from the port of departure ; with the unequivocal declarations 
of the proper officers and surgeon of the ship, asserting solemnly and 
formally that there was not, and had not been, any disease of a con- 
tagious, epidemic, or malignant character on board, and no death on 
the voyage ; that there existed only cases of the " Panama" or inter- 
mittent fever, usually if not always found on all the steamers from 
Chagres, and for which no vessel had ever heretofore been placed in 
quarantine or kept from communicating with the shore ; and, further- 
more, that without any examination whatever, but in defiance and in 
reckless denial of all these allegations, the ship was detained thirty- 
two hours, ordered to quarantine, and then, after a momentary inquiry 
and informal investigation of her condition, she was immediately dis- 
charged, in a most informal manner only, as the officers alleged and 
believe, through the voluntary and disinterested conduct of a surgeon 
of her Majesty's fleet at the Havana, who went on board, confirmed 
the statements made by her officers, and thus caused the authorities to 
do what they ought to have done, and what they could have done at 
first, and without this uncalled for delay, so annoying and inconvenient 
to the large number of passengers, and so detrimental to a vessel hav- 
ing on board the mails of the United States, and a very large amount 
of treasure destined for another and distant port. It was an aggrava- 
tion of the complaint, and a discourtesy to our flag, that during all this 
time none of the officers of the ship were allowed to have even the 
slightest communication with the American consul. 

In this connexion, I cannot forbear to refer to an error into which 
your excellency has, doubtless unintentionally, fallen, through the mis- 
take of some subordinate — most probably the translator of the depart- 
ment over which your excellency presides — in supposing that the state- 
ment which accompanied my former note on this subject represented 
the surgeon who thus generously interfered for the release of the vessel 
as belonging to the fleet of the United States, instead of to that of her 
Catholic Majesty. 

The statement was directly the contrary, as your excellency will per- 
ceive by referring to the same. 

Having understood that this was an inadvertent mistake, I dismiss so 
much of your excellency's observations as relate to the same, and the 
"unfounded statement set forth" {esjpecie asendata) and intentional misrep- 
resentation so unjustly charged against the captain of the "Ohio," with 
the single suggestion that it is always safer to take a charitable view of 
fallible human nature than to indulge in constructions so disparaging to 
the character and good name of a person against whom nothing has 
been heretofore alleged, and who, as in the case before us, is believed 
to be worthy of every confidence and esteem. 

Your excellency calls special attention to the circumstance that there 
was on board " no passenger for the Havana;" and it is thus left to be 
inferred that there was no necessity for personal communication with the 
shore, when the fact is that there were passengers, believed to be some 
fifty in number, bound for New Orleans, who had to land at the Havana 



96 CASE OF THE BLACK WARRIOR, ETC. 

on their voyage to the former city, and who did, in fact, thus land, with 
others on board the ship, by paying one dollar each to the local author- 
ities for this permission. 

Your excellency refers to the circumstance that there was a death on 
board ; but if so, the Spanish surgeon himself states that it took place 
on the day of the examination made by him, and not before, or on the 
arrival of the vessel, when she was ordered to be detained by armed 
force from all communication with the shore. He further states that 
this individual died of intermittent fever ; and that there was no contagious 
or rnalignani disease on boards thus promptly verifying the original 
statements of the surgeon and officers of the ship, which could have 
been as easily and effectually done at first as after this unnecessary 
detention. 

Your excellency complains of Mr. George Law as being disposed to 
excite dissensions, and that he is constantly and unreasonably provok- 
ing contentions and difficulties between the two countries ; and your 
excellency intimates that it may become the duty of her Catholic 
Majesty's government to withdraw the privileges extended to this line 
of United States mail steamships, and subject it to new conditions and 
restrictions. 

If the embarrassments to which the line has heretofore been sub- 
jected are to continue, it may be that Mr. Law may deem it his duty 
and interest to anticipate the action of her Majesty's government, and 
voluntarily withdraw his ships therefrom, instead of availing himself 
longer of these privileges, provided he can be absolved from his con- 
tract with the United States, who are also deeply interested in the 
transportation of the public mails on board the vessels of this line, be- 
sides the general duty of giving just and ample protection to the citizens 
of the republic and their property, wherever to be found. 

I do not suppose that the course pursued towards the vessels of this 
line by the local authorities is expressly so intended; but it certainly 
may have that effect in the end if allowed to be continued by the gov- 
ernment at this court. 

It is not my duty nor my purpose, in this correspondence, to become 
the defender of Mr. Law. He may have committed errors, as others 
have. I am here solely as the representative of the United States, to 
fulfil their instructions, and to take care, within the sphere of my duties, 
that the just rights of all their citizens, however humble or exalted, 
however rich or poor, are fully and fairly maintained and defended. 
But I cannot do less than say to your excellency that in the case of the 
" Crescent City," as well as in this of the " Ohio," the only two in- 
stances in which Mr. Law has appealed to his government on account 
of occurrences at the Havana, the justice of his requisition has been 
admitted by the United States, who believed that they had good ground 
of complaint in each case against the authorities of Cuba, and made 
corresponding demands for satisfaction and redress from the govern- 
ment at Madrid. 

Your excellency seems to object that I should have referred in this 
connexion to the case of the " Crescent City." Believing, as the actual 
result demonstrated, that there was no well-founded ground for the 



CASE OF THE BLACK WARRIOR, ETC. 97 

action of the Cuban authorities in either case — in the case of the 
" Ohio " that there was no contagion or other cause to justify the deten- 
tion and order to quarantine ; and in the case of the " Crescent City " 
that Purser Smith did not write, transmit, or have any knowledge of, or 
•agency in, the newspaper articles complained of; and that if he had, 
it was no reason why the ship should have been prohibited from entering 
the port of Havana to land her passengers and deliver her mails ; and 
believing also that these proceedings were calculated, by their very na- 
ture, and their occurrence in quick succession, to disturb the friendly 
relations of the two countries — it was most natural and proper, in the 
opinion of the undersigned, that the analogy between them should be 
alluded to and commented upon in this correspondence. I must be al- 
lowed to remind your excellency, too, that the answer of her Majesty's 
government in the case of the "Crescent City" was not satisfactory to 
that of the United States, and was passed over at the time without fur- 
ther correspondence and negotiation, solely from the circumstance that 
the Captain General had revoked the order which had produced the 
difficulties ; and in the further hope that her Majesty's government, 
seeing with regret, as do the United States, the occurrence of these 
embarrassme#Ls, might be disposed to enter upon some new and mutual 
arrangement by which the commercial interests and intercommunica- 
tion between the Spanish colonies and the United States might be 
placed upon a better and safer basis for the continuance of harmony, 
and for the reciprocal advantage of both countries. I cannot forego the 
occasion also to remark, that while the government at Madrid were 
approving, and, as would seem from your excellency's note, still con- 
tinue to approve, the conduct of the Captain General in the affair of 
the "Crescent City," and objected to by the United States, that officer 
himself had seen the error he had committed, repealed the order which 
had given so much trouble, and allowed the entry of the vessel with 
the "obnoxious Purser Smith on board;" thus voluntarily and sub- 
stantially admitting the justice of the complaint of the United States, 
and that such an order was not necessary tor the safety of the island, 
as at first alleged. Though his action was tardy, it was duly appre- 
ciated, and the subject w r as then permitted to drop. 

The United States would be the last to question the right of Spain, 
as an independent nation, or that of the Captain General of Cuba, 
under authority from his government, to do whatever they may deem 
necessary for the protection and security of the island, as regards either 
the public health or safety. But then, this right must be exercised, 
and this authority executed, with due respect to the rights of others, 
and consistently with the usages and laws of civilized nations, who, of 
course, are equally competent to judge whether these laws have been 
violated and these usages improperly infringed or not. In the case 
before us, the government of the United States believe there was as 
little reason to detain the "Ohio," from any consideration or fear of 
danger to the public health of the island, as there was to exclude the 
" Crescent City," from any pretext of insecurity to the public safety. 

The government of Spain may, if they think proper, interdict all com- 
munication, personal or commercial, with the United States, ; yet? surely, 
7 



98 CASE OF THE BLACK WARRIOR, ETC 

such an act could only be regarded as anything but a friendly one, and 
would have to be done under all the responsibility for the consequences 
which might justly be expected to flow from such an inimical proce- 
dure. And whether such prohibition be effected directly by law, or 
indirectly by annoyances and embarrassments to such intercourse, on 
the part of the authorities of Cuba, and not disapproved of by the me- 
tropolitan government, the pernicious and fatal result would be the 
same to rhe interests and good will of the two nations. 

Such a policy could but promptly end in the entire destruction of the 
peaceful relations of the two nations. 

Believing that the government of Spain will be well disposed fairly 
to review the conduct of their subordinate authorities upon all occa- 
sions, when respectfully required to do so by a friendly power, the 
government of the Union will continue to appeal to them for redress, 
whenever they have reason to believe that such conduct has been 
unjust and injurious to their citizens and the property of those whom 
it is their highest duty to protect and defend against injustice and 
wrong. 

When the facts of this case shall be fully and accurately ascer- 
tained, I think your excellency will discover that the%overnment of 
the United States have not been " listening to inexact" and "pas- 
sionate " statements of persons in whom "little confidence is to be 
placed," but that they have just ground of complaint against the 
authorities in Cuba, for which the government at Madrid ought to give 
prompt and plenary satisfaction and indemnity. 

I avail myself of this occasion to renew to your excellency the as- 
surance of my most distinguished consideration, &c, &c, &c. 

D. M. BARRINGER. 

His Excellency General Serstjndi, 

President of the Council and Minister of State. 



Mr. Barringer to Mr. Marcy. 
[Extract.] 

[No. 148.] Royal Site of San Ildefonso, 

July 16, 1853. 

Sir : I have the honor to transmit, herewith, copies of my note to 
the Spanish government of the 25th ultimo ; of their answer to the same 
of the 9th instant ; and of my reply to this note under date of the 14th 
instant, on the subject of the detention and search of the American 
schooner " Manchester," near Cape San Antonio, in the month of March 

ast. 

# # # # * 

Hon. Wm. L. Marcy, 

Secretary of State. 



CASE OF THE BLACK WARRIOR, ETC. 99 

Mr. Barringer to General Sersundi. 



■to' 



Legation op the United States, Madrid, 

June 25, 1853. 

Sir : I am directed to bring to your excellency's attention the cir- 
cumstances of a transaction which occurred near the island of Cuba, 
in the month of March last. It appears that on the 14th of that month, 
the American schooner "Manchester," captain Sterling, of Baltimore, 
on her voyage from Jamaica, while off the island of Cuba, about twenty 
miles from Cape Antonio, being driven there by adverse winds, was 
boarded by a Spanish cruiser of twelve guns. 

Twelve armed men were sent on board, who took possession of the 
vessel and carried her inside the reef, in spite of the remonstrances of 
the captain. They then demanded her papers and examined them ; 
and although these were found to be correct in all respects, they broke 
open her hatches and took out about a third of her cargo, but not find- 
ing any guns or ammunition on board, put the cargo back again. They 
then threatened to take the vessel to the Havana ; but after keeping her 
thus twenty-four hours under the guns of the cruiser, they decided to 
allow her to depaifc, getting out of the reef the best way she could. 
This, however, was not allowed until the captain had promised a 
pilot, for his services, the unjust demand of some thirty dollars, the 
cruiser being in company all the while. 

It is sufficient, at present, to bring this affair to the notice of your 
excellency, that a prompt investigation may be had in reference to the 
same, that proper explanation may be given to the government of the 
United States, and a just satisfaction made to the injured parties. It 
affords another illustration of the necessity of some mutual arrangement 
between the two countries, by which their commercial intercourse may 
be placed upon a more definite and satisfactory basis ; and also of the 
necessity of urgent and effectual instructions to the authorities in Cuba, 
to observe a course of conduct more in accordance with the recognised 
rules of commercial intercourse, and more regardful of the rights and 
property of American citizens. 

I avail myself of this occasion to renew to your excellency the as- 
surances "of my most distinguished consideration. 
Your excellency's obedient servant, 

D. M. BARRINGER. 

His Excellency General Sersundi, 

President of the Council and Minister of State. 



General Sersundi to Mr. Barringer. 
[Translation.] 

First Department of State, 

San Udefonso, July 9, 1853. 
Sir : I have had the honor to receive your excellency's note relative 
to the detention near cape San Antonio, in the island of Cuba, of the 



100 CASE OF THE BLACK WARRIOR, ETC 

American schooner "Manchester," by a Spanish cruiser, which act took 
place, as your excellency states, of the 14th of March last. 

The government of her Majesty has not received any intelligence 
concerning the occurrence to which your excellency refers ; and in 
order to obtain such intelligence as precise as is necessary for forming 
a judgment in the case, I have addressed the Captain General 'of the 
island of Cuba, charging him to give information concerning the fact 
in question. 

Meantime, and limiting myself solely to the act of detention, stripped 
of the circumstances which may have intervened in it, the which are as 
yet unknown to me, as I have had the honor to state to your excellency, 
I cannot do less than call your attention to the grave considerations 
which make excusable any excess of zeal in the exercise of their duties, 
if any shall have occurred, on the part of the cruisers, charged with 
watching the coasts of Cuba. 

The especial situation of that part of the dominions of her Majesty, 
threatened by expeditions which already more than once have succeeded 
in touching the Cuban soil, exacts on the part of our vessels that no 
means nor efforts whatsoever should be omitted, within the limits of 
their jurisdiction, to keep off the danger of new incursions; and this, as 
your excellency knows, can only be attained by the examination and 
search of those vessels, national or foreign, which in passing those 
waters may excite suspicion for whatsoever reason. Without that, these 
suspicions once removed, the act of detention can be qualified as an 
offence, since it is authorized by the law of nations, by the duty of 
self-defence, and by a lamentable experience, that all the precautions 
are few for keeping at a distance the enemies of the public tranquility 
of the island of Cuba. 

Also, the obligations contracted by virtue of international compacts 
with respect to the abolition of the traffic of negroes, impose upon the 
Spanish authorities in those dominions the duty of watching carefully, 
so that the disembarcation of slaves may not take place ; and your ex- 
cellency will easily comprehend that, if those who devote themselves 
to this so lucrative traffic could in any way elude the action of the 
cruisers, as would happen the moment in which fetters should be put 
upon the latter by establishing exceptions, the important object of the 
abolition of the negro traffic would come to be illusory and impossible. 

Notwithstanding this, being desirons of avoiding every reasonable 
motive for reclamation on this point on the part of the United States, I 
have addressed to the Captain General of the island of Cuba the proper 
orders, so that the vigilance of the Spanish cruisers shall be exercised 
in such a way as to cause the least molestation possible to the vessels 
which may navigate the seas of the island of Cuba. 

1 avail myself of this occasion to renew to your excellency the assu- 
rances of my most distinguished consideration, &c. 

FRANCISCO SERSUNDI. 

To the Minister Plenipotentiary, 

of the United States. 



CASE OF THE BLACK WARRIOR, ETC. 101 

Mr. Barringer to General Sursundi. 

San Ildefonso, July 14, 1853. 

Sir: Your excellency's note of the 9th instant, on the subject of the 
detention of the American schooner "Manchester," by a Spanish cruiser, 
near Cape San Antonio, in the month of March last, has been received. 
Appreciating, in their fullest extent, the grave considerations urged 
by your excellency to show the necessity of constant vigilance along 
the Cuban coasts, for the purposes both of preventing hostile invasions 
and of suppressing the African slave-trade, and making all due allow- 
ance for the excess of zeal and want of discretion sometimes displayed 
by the Spanish authorities in performing these duties, 1 must still insist, 
as 1 think your excellency will more fully ascertain, upon an examina- 
tion of the facts in the particular case before us, that there was no jus- 
tification for the conduct of the officers of the cruiser, and that there 
was not the slightest ground of suspicion to authorize the seizure, vex- 
atious search, and other annoying circumstances, which attended the 
detention of the said American schooner. 

It is proper, however, to abstain from farther remarks for the present, 
and until her Majesty's governmeut shall be more fully informed as to 
the facts of the case, upon the inquiry which, I am pleased to learn, 
your excellency has directed the Captain General of Cuba to cause to 
be made. 

It is a source of much satisfaction, also, to learn that the necessary 
orders have been given to the same high officer, with a view to avoid, 
as far as possible, all improper interference with vessels navigating the 
waters of that island. 

I avail myself of this occasion, &c, &c. 

D. M. BARRINGER. 



Mr. Bairinger to Mr. Marcy. 
[Extract.] 

[No. 153.] San Ildefonso, 

August 18, 1853. 

Sir : I have the honor to transmit herewith, copies of a note from the 
Spanish government of the 10th instant, and of my reply to the same, 
of the 11th instant, being the final correspondence between the Spanish 
government and this legation on the subject of the detention of the 
United States steamship " Ohio," at the port of Havana, in the month 
of March last. 

It will be seen, that in my final note relative to this affair, about 
which I have heretofore felt it my duty, under the instructions from the 
department, to remonstrate in strong terms against the conduct of the 
authorities in Cuba, I have acted on the information communicated to 
me from the Spanish Foreign Office, that it had been amicably arranged 
at Washington. I have no reason to doubt the correctness of this in- 
formation, though I have no advice on the subject from the Depart- 
ment of State. 



102 CASE OP THE BLACK WARRIOR, ETC 

I trust my course in this negotiation will meet the approbation of the 
government at Washington. 

I have the honer to remain, with the highest respect, sir, your obe- 
dient servant, 

D. M. BARRINGER. 
Hon. Wm. L. Marcy, 

Secretary of State. 



[Translation.] 

First Department op State, 

San 1 Idefonso, August 10, 1853. 

Sir : I have delayed answering the reply which your excellency was 
pleased to address me on the 23d of June last, upon the affair of the 
detention of the steamer " Ohio," in the port of Havana, because I was 
desirous to learn, beforehand, the estimation put upon this occurrence 
by the government of the confederation, in view of the explanations 
which Sefior Calderon de la Barca was charged to make. 

The situation of your excellency, as a mere executor of the orders 
of your government, obliged you to be persistent in the reclamation, 
however much your excellency might have comprehended that those 
orders had been dictated under the first impression caused by the com- 
plaints of the proprietors of the " Ohio;" but the government of her 
Majesty ought not to add warmth to a discussion for a motive so trivial 
and innocent, and on this account it addressed the explanations to the 
cabinet in Washington. 

I have now the satisfaction to announce to your excellency that, ac- 
cording to information from the minister of the Queen in Washington, 
Mr. Marcy had been convinced, that in the momentary detention of the 
" Ohio" there was no motive for complaint on "the part of the United 
States, having manifested to Sefior Calderon de la Barca that " there 
was no occasion for saying anything more upon this subject." 

I take especial satisfaction in considering as terminated a discussion 
so unnecessary, and in recognizing the good faith with which the 
government of the United States has done justice to the rectitude and 
impartiality of our intentions, and I avail myself of this opportunity to 
renew to your excellency the assurance of my most distinguished con- 
sideration, &c, &c, &c. 

FRANCISCO SERSUNDI. 

To the Minister Plenipotentiary, 

of the United States. 



Legation of the United States in Spain, 

San lldefonso, August 11, 1853. 

Sir: Your excellency's note of yesterday has just been received. I 
have sincere pleasure in being informed thereby that the explanations 



CASE OF THE BLACK WARRIOR, ETC- 103 

which his excellency Mr. Calderon de la Barca had been instructed to 
make to the government at Washington, on the subject of the detention 
of the steamer "Ohio" in the port of the Havana, had proved entirely 
satisfactory. 

I am rejoiced at this termination of a discussion in which I have 
been the mere organ of my government, to fulfil their express instruc- 
tions ; and I am sure I shall have the hearty concurrence of your ex- 
cellency in wishing for a conclusion equally satisfactory to every sub- 
ject of negotiation which may arise between the two governments. 

I avail myself of this occasion to renew, &c, &c. 

D. M. BARRINGER. 

His Excellency General Sersundi, 

President of the Council and Minister of State ad interim. 



Mr. Soule to Mr. Marcy. 

[Extract.] 

[No. 6.] Legation of the United States, Madrid, 

March 8, 1854. 

Sir : I have the honor to transmit herewith the translations of two 
notes received from her Majesty's Minister of State, dated 15th Novem- 
ber, 1853, and 14th February last, upon the subject of the detention 
and search of the American schooner " Manchester," near Cape St. 
Anthony, in Cuba, by a Spanish armed cruiser. 

You will recollect that the original instructions of the department to 
my predecessor were not definite, nor did they authorize him to do 
anything more than to call the attention of her Majesty's government to 
the circumstances of the occurrence. Indeed, the facts of the case do 
not appear to have been at that time clearly known even to our govern- 
ment. They are now, however, sufficiently well ascertained, from the 
admissions contained in those two notes. 

The " Manchester," it appears, was found stranded, and the cruiser, 
after getting her afloat, entertaining some suspicion of her errand on the 
coast, although her papers were probably in every respect correct, 
broke open her hatches and took out a part of her cargo, when, finding 
nothing to warrant suspicion, the same was returned to its place, the 
"Manchester" piloted out into the open sea, and put at liberty. 

The Spanish government attempts to excuse this conduct by consid- 
erations connected with the peculiar condition of the island at that time, 
and in these last two notes seems to be desirous of diverting attention 
from the main features of the case to a transaction between the captain 
of the " Manchester" and the Spanish pilot, involving the payment of 
thirty dollars. 

In my answer to these notes, dated the 3d instant, I have thought 
proper to bring the affair back again to its true signification and bear- 
ings, saving the two questions involved, viz : that of indemnity to the 
owners of the " Manchester," and that of the insult offered to our flag. 



104 CASE OF THE BLACK WARRIOR, ETC 

I have now the honor to refer the whole subject to you, for such further 
action, if any, as may appear proper to the government. 



[Translation.]' 

First Department of State, 

Palace, November 15, 1853* 

Sir : The Captain General of the island of Cuba, from whom infor- 
mation had been sought concerning the circumstances of what took 
place in the detention of the American schooner " Manchester," by a 
Spanish cruiser, near the cape of San Antonio, in the said island, has 
transmitted to this first department copies of the communications which, 
on this subject, and at his instance, have been addressed to him by the 
Anglo-American consul at the Havana and the commanding general of 
that naval station. 

According to what is remembered by the secretary of the consulate, 
with reference to the information which was given him at that time by 
his predecessor, Mr. Sharkey, and according to what appears from a 
dispatch which the latter addressed to his government, the consul of 
the United States has stated that, at the beginning of March of this 
year, a letter was received at that consulate, signed by the captain and 
mate of the "Manchester," in which they said that the schooner being 
swept by a strong current, and having stranded near the cape of St. 
Anthony, a Spanish war-schooner presented herself, which sent them 
men to assist them out of the difficult situation in which they were ; 
that the officers of the Spanish vessel, on account of some suspicion 
which they entertained, caused the hatches to be opened and a part of 
the cargo to be removed, but not finding anything, they put the " Man- 
chester" at liberty to continue her voyage. 

The letter contained also a postscript, charging Mr. Sharkey not to 
pay to the pilot of the Spanish schooner thirty dollars, which he exacted 
for his services'. 

Mr. Sharkey, nevertheless, being of opinion that the captain of the 
"Manchester" was under the obligation of paying what had been 
claimed of him, (seeing that they had gotten him out of a perilous po- 
sitionj) caused the pilot to deliver him the account receipted, and sent 
it on for payment to the collector of the custom-house at New York. 
Afterwards, and in view of an article in a newspaper of that city, in 
which the captain of the "Manchester" gratuitously accused the crew 
of the Spanish schooner of various outrages which he supposed they 
had put upon him, Mr. Sharkey, in order to establish the truth of the 
facts, wrote to the minister of foreign affairs of the United States a nar- 
rative of what had occurred. 

As your excellency will perceive, the result is, that, although a search 
of the " Manchester" did take place, it was only after having afforded 
her the protection and aid which were exacted by humanity and the 
difficult position in which she was, and in consequence of a suspicion 
sufficiently justified by the special circumstances of the island of Cuba, 



CASE OF THE BLACK WARRIOR, ETC. 105 

and the projects of invasion with which she has been more than once 
threatened. I ought nevertheless to say to your excellency that, in the 
communication of the commandant general of the naval station to the 
Captain General of the island, an explicit assurance is given that thirty 
dollars were not exacted from the captain of the " Machester" for hav- 
ing placed her at liberty, since, besides that the commanding officers 
of the Spanish cruiser had thus stated, such exactions are in open op- 
position to the regulations of the navy. 

In view of the complete contradiction, as regards this point, which 
exists between the communications of the Anglo-American consul and 
the commandant general of that naval station, General Canedo has 
sought from the latter new information, and a more detailed account of 
all which occurred. 

I will hasten to transmit the same to your excellency as soon as it 
shall be received in this first department ; although I am confident 
that, in attention to what is stated by the American consul, your excel- 
lency will have recognized the bad faith with which the captain of the 
"Manchester" has proceeded in accusing, without the slightest reason, 
the officers of the Spanish vessel-of-war, and of the little credit which, 
for this cause, his language merits. 

I avail myself of this occasion, &c, &c, &c. 

A. CALDERON DE LA BARCA. 

To the Minister Plenipotentiary 

of the United States. 



* [Translation.] 

First Department of State, 

Palace, February 14, 1854. 

Sir : In accordance with what I had the honor to announce to your 
excellency in my note of November 10, of last year, the Captain Gen- 
eral of the island of Cuba has transmitted to this first department the 
new information relative to the detention of the American schooner 
" Manchester" by a Spanish cruiser, which he had sought from the 
commandant general of that naval station, with the object of verifying, 
if in fact any recompense was exacted from the captain of the Ameri- 
can vessel for the services which were afforded him on that occasion. 

The result of these last communications is, that the said schooner 
being put afloat, and after having been taken out from among the dan- 
gerous reefs where she was found, the captain asked the Spanish pilot 
what sum he should give him for having put him in the open sea ; and 
having agreed that it. should be thirty dollars, he stated that he could 
not pay it at that moment on account of being without money, but that he 
would give him a letter desiring trie United States consul at the Havana 
to pay him that amount. Instead, therefore, of any violent exaction on 
the part of the pilot, there was, in this case, no more than the accept- 
ance of the voluntary offering made by the American captain, who, at 
the same time, wrote in a contrary sense to the consul referred to, and 



106 CASE OF THE BLACK WARRIOR, ETC 

afterwards published in a newspaper of the Union a false account of 
the occurrence, defaming the loyal deportment of the Spanish officers. 

I ought, nevertheless, to say to your excellency that the command- 
ant general of the naval station of the Havana has disapproved of the 
conduct of the pilot in having accepted a recompense which the regu- 
lations of the navy prohibit, imposing upon him also a punishment for 
not having made known the same, as he ought, to the captain of the 
vessel in which he served. 

For this reason the proper communications have been addressed to 
the commercial agent of the United States at the Havana, to the end 
that he may not pay the indicated sum of thirty dollars, as often as the 
Spanish cruisers shall receive no recompense whatever for the exten- 
sion of services of the same nature as those which have caused the 
unjust "and unfounded complaint of the captain of the "Manchester." 

I avail myself of this occasion, &c, &c. 

A. CALDERON DE LA BARCA. 



Legation op the United States, Madrid, 

March 3, 1854. 

Sir : I have had the honor to receive your excellency's notes of the 
15th November, 1853, and the 14th February last, referring to the case 
of the American schooner Manchester. 

In reply, I beg leave to say that your excellency seems to have been 
laboring under a misapprehension in supposing that either this legation 
or the government of the United States had felt any considerable inter- 
est in the question of the payment of thirty dollars between the captain 
of the American schooner and the pilot of the Spanish armed vessel. 
Whether either or both of those individuals proceeded with good or bad 
faith in that transaction, is a matter of very little importance in this 
discussion. 

The points to which, however, I feel it necessary to recall the atten- 
tion of your excellency as important, are — 

1st. The question of indemnity to the owners of the Manchester for 
the injury and losses which they may have sustained on account of the 
illegal detention and search of that vessel by a Spanish cruiser ; and, 

2d. The insult offered to the flag of the United States by the deten- 
tion and search of a vessel under its colors, whether the same may 
have occurred in the waters of the island of Cuba or in any other of 
the waters which surround this earth. As regards the first, it may 
perhaps prove to be, in this instance, but a mere question of right, 
since the injuries sustained by the owners of the schooner may have been 
only nominal, and their losses more than compensated by the benefits 
received from the crew of the cruiser in aiding to get her out from among 
the reefs. But with regard to the second point I am not prepared to de- 
clare the explanations of your excellency as satisfactory to my govern- 
ment; yet, in view of the peculiar circumstances of this case, I will 
transmit the communications of your excellency to the Secretary of 
State of the United States, and will await his instructions before 
making any further communication on this subject. 



CASE OP |HE BLACK WARRIOR, ETC. 107 

I ought, however, to say to your excellency that, as regards the cap- 
tain of the Manchester, no complaint has been preferred on his part to 
the. government at Washington, or to any of its officers, so far as I am 
informed, either against the officers of the Spanish vessel-of-war or 
against any person connected with the occurrence which has been 
brought to the notice of her Majesty's government. The simple suspi- 
cion, only, that a vessel under the flag of the United States has been 
forcibly detained and searched by one of her Majesty's armed cruisers, 
in time of peace, will always be sufficient to excite the very serious at- 
tention of the government of the United States, and must necessarily, 
in every case, lead to a rigid investigation of the circumstances which 
may have conduced to the taking of so very delicate a step. Mean- 
time, I take a sincere pleasure in assuring your excellency that no 
government is more sensible to the courtesy, nor more prompt in ac- 
knowledging the favors which its vessels or citizens in distress may re- 
ceive at the friendly hands of the subjects of other powers, than is the 
government of the United States ; and it would be for me a source of 
the highest satisfaction if I should hereafter be called upon to address 
your excellency in no other than cases purely of this last description. 

I avail myself of this occasion to renew to your excellency the assu- 
rance of my most distinguished consideration. 
Your obedient servant, 

PIERRE. SOULE. 

His Excellency Don A. Calderon de la Barca, 

Minister- of State. 




CASE OF JOHN S. THRASHER. 

Mr. Webster to Mr. Sharkey. 

[Extract.] 

[No. 5.] Department of State, 

Washington, January 7, 1852. 

Sir: 

******** 

t You will please obtain copies, if permitted by the Spanish authori- 
ties, from the records of the oaths and proceedings in the case of the 
domiciliation of Mi. Thrasher, and transmit the ^ame to this depart- 
ment. 

Your letter of the 24th ultimo has been received. 
I am, sir, &c, 

DANIEL WEBSTER. 
William L. Sharkey, Esq., 

U. S. Consul, Havana. 



108 CASE OP THE BLACK WARRIOR, ETC 

Mr. Barringer to Mr. Webster. 
[Extract.] 

[No. 75.] Legation of the United States, Madrid, 

January 14, 1852. 

Sir : I have much satisfaction in informing you that Mr. John S. 
Thrasher, lately sentenced to eight years' presidio in Ceuta, Africa, by the 
Spanish authorities in Havana, was pardoned on the 11th instant, and 
will be immediately released. 

The first notice I had of this sentence was on the 28th ultimo, in a 
private note from Mr. Thrasher himself of the 22d ultimo, announcing 
his arrival at Vigo as a prisoner on board the Spanish ship " Hispano 
Cubano," then in quarantine, and shortly to proceed to Cadiz on his 
route to Ceuta. Mr. Thrasher, without giving a detailed statement of 
his arrest and trial, referred me to the communications which he sup- 
posed I had received, or would soon receive, from Washington, whither 
he had directed the papers to be sent from Havana. Not having re- 
ceived any instructions from the Department of State on the subject, 
but still anxious to do all I could, under the circumstances, in behalf 
of the prisoner, on the 29th ultimo I addressed an unofficial note to the 
Minister of the Interior, (Gobernacion,) referring to his arrival, saying 
that I was ignorant of the charges against him, and did not know, 
therefore, whether his case was embraced in the recent pardon of the 
American prisoners, or not ; that I desired copies of the proceedings 
and sentence against him ; and, also, that Mr. Thrasher might be con- 
fined for the present at or near Cadiz, with liberty of the fortress or 
arsenal, as the case might be. 

I stated to him frankly that I had no official instructions on the sub- 
ject, and that all I asked was a personal favor. I subsequently had 
an informal interview with this minister on the subject, who manifested 
every disposition to do all in his power in answer to my request. 

On the 5th instant I addressed a communication to the Minister of 
State and Foreign Affairs, a copy of which, marked A No. 1, is here- 
with enclosed. I also had several interviews with this minister and the 
under Secretary of State on this subject. It is not deemed essential 
to detail the conversations had on these different occasions. 

It is sufficient to state that I maintained in substance, that, although 
ignorant of the specific charges against Mr. Thrasher, I regretted his 
detention in prison, especially since the recent satisfactory and honora- 
ble adjustment of diffeiences between the two countries, and the gen- 
eral pardon and release of all the other American prisoners ; that it 
would be most desirable to remove also this source of excitement ; that 
it occurred to me this prisoner might well be embraced in the general 
amnesty or pardon, particularly as he had appealed from the decision 
in Havana to her Majesty the Queen, and inasmuch, as far as I under- 
stood the accusations against him, they had some connexion with the 
late expedition against Cubu ; and that Mr. Thrasher complained of 
injustice' done him on the trial, and that privileges had been denied him 
to which he was entitled as an American citizen. 



CASE OF THE BLACK WARKIOR, ETC. 109 

It was replied that his trial and sentence stood on separate and inde- 
pendent grounds, though they might have some connexion with the 
invasion ; that her Majesty's government felt the full force of the con- 
siderations urged, and had every disposition to remove every cause of 
difference between the two countries, whose friendly relations had been 
placed on so honorable a basis by the recent negotiations ; that, as far 
as they were cognizant of the proceedings against the prisoner, he had 
no cause of complaint on account of the trial or sentence ; but that the 
representations which I had made, added to their own knowledge on 
the subject, would be cheerfully and seriously considered, with every 
desire on their part to preserve in their full extent the most amicable 
feelings towards the American nation, and to grant my requests as far 
as was consistent with duty to their own government and people ; but 
that, if Mr. Thrasher was an American citizen, he was still subject to 
the laws of Spain whilst resident in Cuba. 

This latter proposition was admitted by me, with the proviso that 
if he was an American citizen — which I insisted and which they 
seemed to admit — he was entitled, under treaty, to some rights which 
might be denied to a subject of Spain. 

These and similar views were urged upon the government here with 
all the force I could command, in the absence of instructions from 
Washington, or full details from Mr. Thrasher himself. 

Having heard more at length from this latter gentleman at Cadiz on 
the 11th instant, I immediately had an interview with her Majesty's 
Minister of State on the same day, in which I repeated the views already 
stated, adding that I was now convinced that Mr. Thrasher was an 
American citizen and not a Spanish subject, though admitting that as a 
domiciliated resident he was amenable to Spanish laws and tribunals 
for any offence committed within Spanish territory, subject to his rights 
under treaty stipulations ; that he had taken no oath of allegiance to 
make him a naturalized subject of her Majesty's government, or to de- 
prive him of his rights under the treaty of 1795 ; but still it could not 
be denied that the Cuban tribunals had jurisdiction of the offence, as 
far as I was advised on the subject ; and therefore I submitted, that the 
best course to adopt was the one which I had before suggested, and 
which seemed to receive the favorable consideration of the minister, 
viz : that he should be included in the general pardon granted by her 
Majesty to the American prisoners, and which was, as you will have 
perceived, limited to those who were " citizens of the United States." 

On the 13th instant I received«from her Majesty's Minister of State, 
the Marquis of Miraflores, a communication under date of the 11th in- 
stant, a copy of which, translated, is herewith transmitted, informing me 
of the pardon of Mr. Thrasher as heretofore stated. The prisoner has 
been detained at Cadiz until within a few days since, and treated with 
every consideration compatible with his situation. I fear, however, 
from a letter received from our consul at that city, that on the 10th or 
11th instant he was embarked for his destination at Ceuta, under his 
sentence. I have taken the proper measures to cause the orders for 
his release to be immediately issued. Copies of the letter of Mr. Burton, 
and of all the important consular correspondence in reference to this 
case, are herewith transmitted, marked B. 



110 CASE OF THE BLACK WARRIOR, ETC. 

It may be proper to mention, as connected with the history of the 
case here, that on the receipt of the letter of Mr. Burton of the 10th 
instant, feeling some surprise, after all that had occurred, that I had re- 
ceived no reply to mine of the 5th instant to the Minister of Foreign 
Affairs, I addressed, a note to that minister on the morning of the 13th, 
stating the information I had received from the consul at Cadiz, my sur- 
prise at the same, and recalling attention to my note, and urging early 
action on my requests. To this note I received an immediate answer 
from the under Secretary of State, in the absence of the minister, trans- 
mitting the minister's communication of the 11th instant, informing me 
that it had been already signed on that day ; that he was in the act of 
sending it to me when my note was received, and requesting that in- 
asmuch as the matter had been previously adjusted in a satisfactory 
manner, I would withdraw my note of that morning. To this request 
I readily and cheerfully assented. 

It will be seen, from the correspondence and from this relation of 
facts, that I have not waited for instructions from the department in 
the case of Mr. Thrasher ; that his release has been obtained on my 
personal application, and that I have considered that the exigency 
of the occasion required me to act on my own responsibility in the 
absence of instructions from the government. 

The results I have just stated ; and I trust my course will be ap- 
proved by the government, as I have reason to believe it will be from 
the contents of your dispatch No. 51, of the 13th ultimo, delivered to 
me by the special bearer of dispatches, George H. Miles, esq., on 
the 13th instant, after the pardon of Mr. Thrasher had been granted 
and the negotiation concluded. 

With sentiments of the highest respect, I remain, sir, your obedient 
servant, 

D. M. BARRINGER. 
Hon. Daniel Webster, 

Secretary of State. 



A 1. 



Legation of the United States, Madrid, 

January 5, 1852. 

Sir : Mr. John S. Thrasher has recently arrived at Vigo from the 
Havana, a prisoner on board the " Hispano Cubano," and is now sup- 
posed to be on his way to Cadiz to be sent to presidio in Ceuta, Africa. 

I am ignorant of the accusations and sentence under which he is con- 
demned, and am not certain whether this prisoner is embraced in the 
pardon recently granted by her Majesty to the Americans concerned in 
the late invasion of Cuba. I do not know, indeed, whether he has been 
tried and condemned as an American citizen, or not ; but I am certain 
he claims to be such. 

I have therefore to desire your excellency to furnish me, if in your 
excellency's power, with copies of the trial and sentence, and other 



CASE OF THE BLACK WARRIOR, ETC 111 

judicial or military proceedings against Mr. Thrasher, and also to ask 
as a favor, that for the present, and until some investigation can be made 
into the nature of his case, he may be detained in the arsenal of the 
Caracca or other fortress near Cadiz, with liberty of the bounds of the 
fortification or arsenal in which he may be confined. 

I avail myself of this occasion to renew to your excellency the 
assurances of my most distinguished consideration, and have the honor 
to be your excellency's obedient servant, 

D. M. BARRINGER. 

His Excellency the Makquis of Miraflores, 

Minister of State, fyc, Sfc, Sfc. 



No. 2. 

[Translation.] 

First Department of the Office of State, 

Palace, January 11, 1852. 

Sir: I have received the note which your excellency has been 
pleased to address to me, under date of the 5th instant, relative to the 
prisoner Mr. John S. Thrasher, from the Havana, desiring to verify 
whether this individual is or not comprehended in the pardon granted 
by her Majesty the Queen to the citizens of the United States who took 
a part in the last expedition of Bahia Honda. 

I have the honor to inform your excellency, in answer to your said 
note, that the government of her Majesty, taking into account all the 
circumstances and antecedents which bear upon this matter, does re- 
gard Mr. John S. Thrasher as comprehended in the general pardon 
conceded by her Majesty the Queen, my august sovereign — consider- 
ing that the process which has been instituted against him proceeds 
from the same occurrences which gave rise to the imprisonment of 
those who came before to the prisons of the peninsula, and have since 
been pardoned. 

The government of her Majesty, in extending to Mr. Thrasher the 
benefits of the general pardon — in which it experiences a singular 
pleasure, by considering this resolution as highly agreeable and satis- 
factory to the government of the United States — does so with the posi- 
tive condition that the said individual shall not return again hereafter 
to the Spanish provinces beyond sea ; and that in case of his being 
found in any of them, he shall be subject to fulfil his sentence, as if he 
never had been comprehended in the pardon. 

I avail myself of this occasion to renew to your excellency the assu- 
rances of my most distinguished consideration, &c, &c, &c. 

THE MARQUIS OF MIRAFLORES. 

The Minister Plenipotentiary 

of the United States. 



112 -CASK OF THE BLACK WARRIOR, ETC. 

No. 3. 

Legation of the United States, Madrid, 

January 13, 1852. 

Sir : I have this moment had the honor to receive your excellency's 
note, under date of the 11th instant, informing me that Mr. John S. 
Thrasher is included in the general pardon of the American prisoners 
sent from the Havana, and connected with the late expedition against 
the island of Cuba. 

Your excellency will readily infer, from the interviews which I have 
had the honor to have with your excellency in reference to the case of 
Mr. Thrasher, how much satisfaction I enjoyed from a knowledge of 
the fact that he has been pardoned and is to be set at liberty. This 
satisfaction is not lessened by the circumstance that his release has 
been obtained on my own personal application, and previous to any 
official advices from my government. I may, however, be allowed to 
anticipate the pleasure which I am sure the course of her Majesty's 
government on this subject will give to that of the United States a 

Your excellency will excuse me for adding the expressions of my 
regret, that in the case of Mr. Thrasher there should have been any 
exception to the free and unconditional terms of pardon extended to the 
other American prisoners. 

Having been informed, by a note received this morning from the 
American consul at Cadiz, that Mr. Thrasher was about to be em- 
barked as a prisoner on board the steamer "Lepanto," bound for Ceuta, 
in Africa, I desire your excellency will cause the necessary orders for 
his release to be issued as soon as possible to the proper authorities, 
and that he be placed at the disposition and under the protection of the 
said consul' at Cadiz. 

With sentiments of the most distinguished consideration, &c, &c. 

D. M. BARRINGER. 

His Excellency the Marquis of Miraflores, 

Minister of State, fyc, fyc. 



Bl. 

[Extract.] 



Legation of the United States, Madrid, 

December 29, 1851. 

Sir : At the request of Mr. J. S. Thrasher, who is a prisoner from 
Havana, on board the " Hispano Cubano," lately at Vigo, and soon 
expected at Cadiz, I enclose you a letter from him. 

I am not yet informed of the charges against Mr. Thrasher, but learn, 
from the public papers of the United States, tha*L he is a person of much 
respectability. I have now no official instructions to give you concern- 
ing him, but request that you will, if possible, see and confer with him 



CASE OF THE BLACK WARRIOR, ETC 113 

as to his wishes, and extend to him all the alleviation in your power in 
his present situation. 



A. Burton, Esq., Consul, Cadiz. 



* # # 

D. M. BARRINGER. 



No. 2. 

[Extract.] 



Legation of the United States, Havana, 

January 6, 1852. 

Sir: I have this day received from Mr. Charles Tyng, of Havana, 
and herewith enclose to you, the second of a bill of exchange in favor 
of Mr. John S. Thrasher, for $1,000, on Don Angel Ma. de Castrisiones, 
of Cadiz, dated Havana, December 3, 1851. You will please imme- 
diately deliver the same to Mr. Thrasher, or place the proceeds to his 
credit, as he may direct. I have as yet received no instructions from 
the government of the United States as to the case of Mr. Thrasher. I 
have, however, applied to the government here for copies of the pro- 
ceedings against him, and under which he is sentenced to presidio; and 
also that he may be detained at or near Cadiz, with liberty of the for- 
tress or arsenal, until investigation can be made into the nature of his 
case. As the application for an order for this latter purpose was made 
some days since, I trust it may have been received by the authorities 
at Cadiz ere this reaches you, especially as I have not only written to 
the minister for the same, but have had two personal interviews with 
him on the subject. 

D. M. BARRINGER. 
A. Burton, Esq., 

Consul United States, Cadiz. 



No. 3. 



Consulate of the United States, Cadiz, 

January 10, ]852. 

Sir : I have just learned at the governor's that the Cuban prisoners 
In the jail here are to be embarked to-day for Ceuta, on board of the 
government steamer "Lepanto," there to await such orders as may be 
given by the government, by whose direction this is done, and that Mr. 
Thrasher is to go with them. 

This gentleman, whom I have just been with, requests me to inform 
you of the circumstance. He will be embarked with the same atten- 
tion as he was landed, without guard, escorted only by me from this 
office, and a municipal officer in plain clothes. 

In haste, I am, sir, your obedient servant, 

A. BURTON. 

Hon. D. M. Barringer, Minister, Sfc. 



114 CASE OF THE BLACK WARRIOR, ETC 

No. 4. 

Legation of the United States, Madrid, 

January 14, 1852. 
Sir : I have the satisfaction to inform you that Mr. John S. Thrasher 
has received the royal pardon, and is to be set at liberty immediately. 

I have requested that he may be placed at your disposition and under 
your protection. You will of course consult Mr. Thrasher, when de- 
livered to you, as to his wishes in reference to his return to the United 
States. 

I remain, very respectfully, &c, 

D. M. BARRINGER. 
Alex. Burton, Esq., 

Consul of the United Stales, Cadiz. 



Mr. Barringer to Mr. Webster. 

[No. 76.] Legation of the United States, Madrid, 

January 15, 1852. 

Sir: After my dispatch No. 75, of yesterday, was mailed, I received 
a communication from her Majesty's Minister of Foreign Affairs, of the 
14th instant, a copy of which, translated, is herewith enclosed, ac - 
knowledging mine of the previous day, and referring to the terms of the 
pardon of Mr. John S. Thrasher, as well as those of the other Ameri- 
can citizens recently set at liberty. 

You will perceive that Mr. Thrasher is recognised in this note as an 
American citizen. I fear, from a note just received from the United 
States consul at Cadiz, that Mr. Thrasher, who had been detained there 
for some time at my request, may have been sent to Ceuta before the 
orders for his liberation could have reached the authorities at Cadiz. 
This event, however, will only delay his release for a day or two, as you 
will observe from the note of the minister that orders for that purpose 
had already been issued by the Minister of the Interior, (Gobernacion.) 
In my dispatch of yesterday I omitted to mention that, in reply to my 
request for copies of the proceedings against Mr. Thrasher in Cuba, I 
was told that the government here had received no such copies. As 
these proceedings were under a military commission or tribunal, I 
doubt whether any record, as we understand the meaning of that term, 
was kept ; and I believe that if any such copies could be obtained at 
all, which is extremely doubtful, they would consist simply of a brief 
statement of facts in the memory of some officer of the court, or an 
argument based upon such statement, like the one furnished to Senor 
Calderon de la Barca by the Captain General of Cuba, and presented 
to you by the former gentleman, and upon which your dispatch No. 
51, to me, was founded. If exception were taken to the form of trial 
under this military commission, and that Mr. Thrasher had no oppor- 
tunity of free and full defence, the certain reply (though it may well 



CASE OF THE BLACK WARRIOR, ETC. 115 

be doubted whether it would be a satisfactory answer) would be, that 
it was according to the "usual course of proceeding in such cases." 
I have the honor, &c, &c. 

D. M. BARRINGER. 
Hon. Daniel Webster, 

Secretary of Stale. 



[Translation.] 

First Department of the Office of State, 

Palace, January 14, 1852. 

Sir: I have received the note which your excellency has done me 
the honor to address to me under date of yesterday, acknowledging the 
receipt of the communication from this department of the 11th instant, 
relating to the pardon granted to the American citizen, Mr. John S. 
Thrasher, condemned by the tribunals of the Havana. 

I have the satisfaction to inform your excellency, that the orders be- 
longing to the Department of the Interior (Gobernacion del Reino) have 
already been issued, with the object that Mr. Thrasher be put at liberty, 
and at the disposition of the consul of the United States in Cadiz, 
according to the desire of your excellency, as being comprehended 
in the general pardons ; and, while I regret that your excellency should 
consider, as an unfavorable exception, the condition imposed explicitly 
upon Mr. Thrasher, of not returning again to the Spanish provinces 
beyond sea, and which was not expressed in the pardon of the other 
persons, I hope that the impression may disappear, upon my informing 
your excellency that the condition with which this pardon is accompa- 
nied is founded in the interest itself of Mr. Thrasher, who, being 
established at the Havana, might, perhaps, believe himself at liberty 
to return there again, the which could not be anticipated in the case of 
the other anglo- American prisoners, proceeding from the United States, 
and not from the island of Cuba. 

The Captain General of that island has an order not to permit any 
one of the pardoned prisoners to enter it, and from this consideration 
arises the clause in the pardon of Mr. Thrasher, which is a warning 
profitable for the person interested, rather than a condition. 

I avail myself, &c, &c. 

THE MARQUIS OF MIRAFLORES. 

Legation of the United States, 

at Madrid. 



Mr. Sharkey to Mr. Webster. 

[Extract.] 

[No. 3.1 Consulate of the United States, Havana, 

February 9, 1852. 
****** 

In obedience to your request that I should procure and transmit 
copies of the proceedings relating to the domiciliation of Mr. Thrasher, 



116 CASE OF THE BLACK WARRIOR, ETC. 

I had the honor to address a note of the Captain General on the subject, 
a copy of which is herewith forwarded. My request was answered by 
the note, a translation of which I also forwarded, and with that the 
correspondence, of course, ended. 



Consulate of the United States, Havana, 

February 5, 1852. 

Most Excellent Sir : I have the honor to inform your excellency 
that a dispatch has been received by me from the Honorable Daniel 
Webster, Secretary of State of the United States, by which I am in- 
structed to ask copies, from the records of the government, of the oaths 
and proceedings in the case of the domiciliation of Mr. Thrasher, and to 
transmit the same to the Department of State. I, therefore, ask your ex- 
cellency to grant the requisite order to enable me to examine the records, 
and to procure the requisite copies to be forwarded to my government. 

I have the honor to be your excellency's obedient servant, 

W. L. SHARKEY. 

His Excellency Senor Don Jose de la Concha, 

Governor and Captain General. 



[Translation.] 

[l. s.] Political Secretary's Office. 

I have received the polite communication that your lordship ad- 
dressed to me, under date of yesterday, requesting me to furnish you 
copies of the precedents that exist in this superior government about 
Mr. Thrasher's dormciliatory letter, for the purpose of transmitting them 
to the Department of State, from which your lordship has received 
dispatches claiming them. 

I regret that it is not possible for me to accede to this request, as this 
class of documents always remains on record, and it is not customary 
to furnish, even to the interested party, any other datum than the 
domiciliatory letter, which shows the motives there were for issuing it, 
and the obligations which the person obtaining it binds himself to. 

However, if the Hon. Mr. Webster deems it of high importance to 
nave said copy in his possession, he may address his excellency, the 
Minister of her Catholic Majesty, at Washington, to whom belongs, by 
his diplomatic character, to act upon this kind of demands. 

God preserve your lordship many years. Havana, February 6, 
1852. 

JOSE DE LA CONCHA. 

To the Consul General 

of the United States. 



CASE OF THE BLACK WARRIOR, ETC. 117 

Mr. SkarJcey to Mr. Webster. 

[No. 4.] Consulate of the United States, Havana, 

February 13, 1852. 

Sir : The inhabitants of the island, who emigrated from the United 
States, are much concerned in reference to the question of their allegi- 
ance, and in obedience to their wish, as well as for the purpose of regu- 
lating my own conduct, I venture to make it the subject of a commu- 
nication. They are living here under letters of domiciliation ; but 
many of them assert that their letters were procured only to enable 
them to engage in business pursuits, without any intention of forfeiting 
their allegiance ; and the impression seems to have prevailed, very gen- 
erally, that no such consequence would result from the letter of domi- 
ciliation. They supposed, as they say, it was a mere license to them, 
as foreigners, to remain on the island for a given time, in their several 
business capacities, and they are still reluctant to believe that they have 
transferred their allegiance to the government of Spain. Being still 
attached to their own government, they indulge the hope that they may 
not be concluded by any opinion it may adopt, or action it may take, 
unless upon the most mature deliberation it shall be found that they are 
not entitled to its protection. It is proper to remark, that in many 
cases, as I am informed, no oath was taken ; but that proper certifi- 
cates, that the preliminaries had been complied with, were furnished 
by subordinate officers of the government, appointed for that purpose, 
on the payment of the customary fees, and on these certificates the 
carta domicilia issued. 

I herewith forward a translation of the whole of the ro}^al decree of 
1817, and would remark, that it makes an evident distinction between 
temporary and perpetual settlers or between domiciled inhabitants 
and naturalized citizens ; a distinction which seems to be recognized by 
the Spanish construction, as will be seen by reference to the letter of 
the Captain General, already before you. The decree provided that 
settlers in the island should profess the Cathoiic religion ; that they 
should take an oath of fidelity and allegiance, offering to comply with 
the laws and general regulations of the island. This, although so 
called, is not an oath of allegiance, since it imposed no obligation that 
would not have existed without it. These requisites being complied 
with, and a record made, the party obtained his domiciliatory letter, 
which only conferred limited privileges for a limited time. It conferred, 
in fact, the rights and character of a domiciled inhabitant, as contradis- 
tinguished from the rights and character of a naturalized citizen, as 
will be seen from the letter itself. If, at the expiration of five years, 
the party wished to become naturalized, he could do so. The 24th 
section lays down the requisites to be observed. 

The party was bound to apply to the government, to produce his 
carta domicilia, bind himself to remain perpetually on the island, and 
take the oath of naturalization, promising faithfulness to the Catholic 
religion, to the king, and to the laws, renouncing all rights, privileges, 
and protection as a foreigner, and offering not to maintain any depend- 
ence, connexion, or civil subjection, to his native country. This oath 



118 CASE OF THE BLACK WARRIOR, ETC 

entitled him to letters of naturalization, which conferred fall privileges 
and rights of citizenship, which of course were not possessed before. 

Several circumstances conduce to show that, until this final step was 
taken, the domiciled inhabitant was still regarded as a foreigner. He 
had the unconditional right to leave the island any time during the five 
years ; he was prohibited during that time from engaging in maritime 
commerce, and from keeping stores or shops, except in partnership with 
Spaniards. 

In case of war with his native country, he was entitled to a special 
protection, necessary to foreigners, but unnecessary to naturalized 
citizens. The oath taken in procuring the letter of domicil only re- 
quired a profession of the Catholic religion, and obedience to laws ; the 
final oath required fidelity to the Catholic religion, to the king, and to 
the laws, and renounced foreign protection, and abjured allegiance to the 
native country. 

It is certainly true that every one who goes into a foreign country, 
contracts, by his own free will, the obligation of obedience to the laws. 
It is also true, in one sense, that the domicil of the party will determine 
his national character ; but this is true only in a mercantile sense. A 
domicil may be acquired by residence alone, without any declara- 
tory act ; and when so acquired, it will decide the mercantile charac- 
ter of the party, which, in times of war, will control his rights. In such 
questions as this, the animus manendi is presumed from the residence or 
domicil of the party ; but allegiance is quite a different thing, and must 
be presumed still to exist, when nativity is once shown, until it is also 
shown that the party had, in the most solemn manner, fully and com- 
pletely adopted a new allegiance. This must be true in those coun- 
tries which hold that allegiance is perpetual. And, even in the United 
States, it was ultimately held that a citizen could not absolve himself 
from his native allegiance without a law giving the power to do so. 
Surely, presumption cannot destroy every thing so sacred. 

If the foregoing remarks are well founded, it would seem to follow 
that the emigrants from the United States, residing here under the 
carta domicilia, are still citizens of the United States. And, while it is 
not pretended that this exempts them from liability to the laws of the 
island, yet, if there is any exemption or privilege to citizens of the 
United States, arising from treaty stipulations, they are entitled to 
claim them. It will readily strike you, that the 7th article of the 
treaty of 1795 contains important provisions in this respect. It guar- 
antees to the citizens of the United States the right to be tried in crim- 
inal, as well as in civil matters, by the established law ; and, even if it 
was not competent for Spain to change this law at pleasure, there is 
still one privilege, personal and special, that she could not take away 
without violating the treaty — I mean the right to employ and appear 
by counsel. The utility of this provision, and the reason for its adop- 
tion, are quite apparent. If American citizens were to be allowed 
advocates and counsel only, when they were allowed by law, then the 
treaty secured nothing. The law of nations would have done this 
without treaty. 

I trust you will pardon the liberty I have taken in submitting these 
remarks, which are mere outlines. I have been induced to do so by 



CASE OF THE BLACK WARRIOR, ETC 119 

the great solicition felt by our people here, and by a desire that your 
mind may again be drawn to this subject, and some general rule laid 
down for my government. It seems to me, too, that the friendly rela- 
tions of the two governments, the continuance of which is so necessary 
to both, would be rendered more durable by some timely action in this 
and other interesting subjects. 

I have the honor to be, with great respect, your obedient servant, 

W. L. SHARKEY. 

Hon. Daniel Webster, 

Secretary of State. 



Royal order of October 2\st, 1817, for increasing the white population of 

the inland of Cuba. 

THE KING GOVERNOR, CAPTAIN GENERAL OF THE ISLAND OF CUBA, 

AND INTENDENT OF THE ARMY AND ROYAL TREASURY : 

In your letters of the 17th and 18th of June of this year, you re- 
commended as very necessary for the welfare and preservation of that 
valuable island, a representation by you, accompanied of the city 
council, consulado, and economical society of Havana, wherein, 
making a succinct statement of the extent of the island, number and 
circumstances of the inhabitants, state or condition of its agriculture, 
and of its physical force, they show that one of the most important 
possessions of my royal crown is unpeopled and defenceless, and its 
fields without cultivation, which can yield fruits much desired by other 
nations ; they state that after a most careful and mature consideration, 
upon an affair of such magnitude, they can discover no other means 
capable of conciliating and satisfying such various exigencies, but by 
the increase of the white population with Spaniards from the peninsula 
or Canary islands, and in default of these, with European Catholics 
from friendly countries ; and for that purpose they petition me to ex- 
tend to that island the privileges granted to that of Porto Rico, by my 
royal order of 10th August, 18] 5, with the explanations made hy the 
authorities of that province, under the instructions and articles, which 
to that effect they had given, and are as follows : 

" Art. 1. All foreigners from countries or nations at friendship with 
me, who are already settled, or may hereafter desire to settle, in the 
island of Cuba, must establish by the proper means, before the govern- 
ment thereof, that they profess the Roman Catholic religion, and with- 
out this indispensable circumstance they shall not be allowed to settle 
there ; but my subjects from these dominions, or the Indies, shall not 
be obliged to do so, as there can exist no doubt in regard to their reli- 
gious principles. 

" 2. From the foreigners that should be admitted, in conformity to 
the previous article, the governor shall receive the oath of fidelity and 
allegiance, offering to comply with the laws and general regulations of 
the island, to which Spaniards are subjected. 

" 3. After the foreign settlers have been residing' five years on the 
island, and after binding themselves to remain there perpetually, 
they shall be granted all the rights and privileges of naturalization, 



120 CASE OP THE BLACK WARRIOR, ETC. 

and the same to the children, that they may have taken there with 
them, or that may be born on the island ; that they be admitted to all 
public and military employments, according to the talent or capability 
of each. 

"4. No tax per head, or personal tribute, shall ever be imposed 
upon white settlers ; they shall only pay for their negro or mulatto 
slaves at the rate of one dollar per year for each slave, after ten years 
of having been residing on the island ; this rate shall never be in- 
creased. 

" 5. Within the first five years the Spanish and foreign colonists 
shall be at liberty to return to their countries or former residences ' T 
and, in such cases, they shall be permitted to take away from the island 
all the moneys or property that they took there without paying export 
duties ; but on the increase of property they must pay the per centum. 

" 6. I grant to the old and new colonists dying on the island without 
forcible heirs (heredicos forsosos) the privilege of leaving their property 
to their relations or friends, wheresoever they may be; and if their 
successors should desire to settle on the same, they shall enjoy the 
rights granted to the testator ; but should they prefer to take away the 
inheritance, they may do so by paying upon the total fifteen per cent, 
for exportation duty, if it takes place after five years of the testator 
having been residing on the island; and if before the expiration of that 
time, they shall pay only ten per centum, in conformity to what is 
ordained in the preceding article. The parents, brothers, or relatives 
of settlers dying intestate shall inherit the whole of their property, even 
if they reside in foreign countries, on the condition of their coming to 
settle on the island, if they are Catholics ; but if they cannot or will 
not settle there, then I permit them to dispose of their inheritance by 
sale or cession, according to the rules explained in the two preceding 
articles. 

" 7. I likewise grant to foreign eolonists holding landed property on 
the island, that, in conformity to the Spanish laws, they may leave, by 
will or other disposition, the real property they may be possessed of, 
and not admitting of easy division, to one or more of their children, 
provided no injury is thereby caused to the rights of the others, or of 
the testator's widow. 

" 8. Any settler that, on account of law-suits or other urgent and just 
motives, should be in need of going to Spain, other provinces of my 
Indies, or to foreign dominions, shall ask permission of the governor, 
and may obtain it, provided it is not to unfriendly countries, or to carry 
away his property. 

" 9. Colonists, Spanish as well as foreign, shall be free for the term 
of fifteen years from the payment of tithes upon the products of their 
lands ; and after the expiration of tha,t time, (which must be reckoned 
from the date of the decree,) they shall pay only two and a half per 
cent., which is one-fourth of the tithe. 

" 10. They shall also be exempt from the payment of royal alcabala 
dues on the sales of their products and commercial effects for the term 
mentioned, and after the expiration of it, only two and a half per cent.; 
but everything shipped by them on Spanish vessels bound for these 
kingdoms shall be forever free of all export dues. 



CASE OF THE BLACK WARRIOR, ETC 121 

11 11. As all the colonists must be armed, even in time of peace, to 
be respected by their slaves, and to resist any invasion or attack by 
pirates, I declare that this obligation must not be considered as binding 
them to serve in the regular army ; that it will be sufficient for them 
to present their arms every two months at the review that the governor, 
or officer deputed for the purpose, must pass ; but in time of war or 
mutiny of slaves they shall contribute to the defence of the island ac- 
cording to the measures that its chief may deem proper to take. 

" 12. Vessels of any size or build whatsoever belonging to old settlers 
must be taken to the island, and, after being registered, shall be con- 
sidered as Spanish, and the same such as they may acquire in foreign 
countries by purchase or other legitimate title ; they shall be exempt 
from duties as foreign vessels, or for being registered. Those settlers 
who may be desirous of building vessels on the island shall be per- 
mitted by the government to cut a$d «use the necessary wood, except 
only such as may be destined for building vessels for my royal navy. 

" 13. Foreigners that may hereafter go to the island with the intention 
to settle on it must prove that they profess the Roman catholic religion, 
must make known to the government the trade or honest and useful 
profession to which they intend to apply themselves, and the property 
or moneys they import, which they shall be permitted to take away 
again free of duty, if within the first five years they should determine, 
to their countries or former residences. 

" 14. After the government has declared the colonist to be of admissi- 
ble circumstances a record shall be kept of his name, country, family, 
profession, or trade, district or jurisdiction in which he intends to settle, 
and amount of money or property that the settler may state to be his ; 
after which a domiciliary letter shall be issued in his favor, an oath 
of faithfulness and allegiance being first received, wherein he shall 
offer to comply with the laws and regulations that Spaniards are sub- 
jected to. 

" 15. A record shall be kept at the office of the royal treasury of the 
domiciliary letters, expressing in them the property or moneys stated 
by the settler, as a knowledge must be had for, in case of their being 
again exported, also by the council of the district, and by the comman- 
dant and justice thereof, without causing to the settler any expense for 
these proceedings, or charging him any fees whatsoever. 

"16. The domiciliatory letters shall authorize colonists to be consid- 
ered as residents of the island, and their persons and property shall 
enjoy the same inviolability as those of old residents. From the courts 
they shall receive good treatment and justice, and from the other resi- 
dents all the aid and favor they should become deserving of for their 
qualities and good behaviour ; they shall always have the liberty of 
applying to the government, and its protection secured to them, if any 
injury or detriment should be done to them. 

" 17. Foreign colonists, after obtaining the domiciliary letter, may 
acquire all descriptions of landed property on the island in town or 
country, with the same requisites and privileges as the Spanish resi- 
dents. They shall be permitted to change their residences, or to re- 
move from one district to others, with the knowledge of the respective 
territorial authorities. Those having useful trades or industry shall be 



122 CASE OF THE BLACK WARRIOR, ETC. 

allowed to settle and exercise it wherever it may suit their convenience, 
with the authorities. 

" 18. Foreign colonists cannot, during the first five years of residence, 
employ themselves personally in maritime commerce, nor have shops 
or stores, nor be owners of vessels. But they may be interested in 
company or co-partnership in the mercantile transactions of Spaniards ; 
and the contracts made by them with these, verbally or in writing, 
shall have the same value and legal force as if they were between one 
Spaniard and another. 

" 19. The liberty of foreign colonists to return to their countries or 
former residences during the first five years is absolute, unlimited, and 
without conditions. They may take away their property or dispose 
of it as they think fit. 

" 20. In case of war with the country of which domiciliated foreigners 
are natives they shall not lose the j|gnts and advantages of their resi- 
dence on the island of Cuba. Even if the first five years have not 
elapsed their property shall not be subjected to embargo, sequestration, 
nor any of the ordinary or extraordinary measures of the state of war. 
Those who, notwithstanding the war, should desire to remain on the 
island to complete the five years, and become naturalized, shall be 
permitted freely to do so if known to be of good character and habits. 
Those preferring to leave the island shall be allowed sufficient time to 
commodiously arrange their affairs and dispose of their property, being 
permitted to take away, free of duty, such property, or the equivalent 
thereof, as they introduced into the island, and paying on the excess 
the ten per cent, stated in the I6th article. 

" 21. Domiciliated as well as naturalized colonists may dispose of 
their property by will, or in any other authentic form ; in case of death 
their wills shall be religiously fulfilled ; should they die without will 
or testament, their children or nearest relatives shall be their legitimate 
heirs, with the same rights the deceased had. 

" 22. It is declared that there never shall be put in practice on the 
island of Cuba the rights, usages, or customs, known in other nations 
under the name of aubaine escheatage, or others by which the govern- 
ment and treasury sequesters the property of foreigners at their death ; 
which rights or customs, though they may be applied in cases of tran- 
sient passengers, shall never be understood or applied to these that are 
domiciliated. 

" 23. Within the five years of domiciliation the colonists shall not be 
subjected to any contributions whatever, nor to the residence taxes 
established in the circular of 1st December, 1815, except only in the 
case of public calamities, dangers to the country, and defence of the 
coast against robbers or pirates ; in which extraordinary events, or 
other similar ones, all must lend their aid and favor, according to the 
well-known principles of natural and international law." 



Mr. Graham to Mr. Webster. 

Navy Department, February 21, 1852. 
Sir: I have the honor to return herewith, after perusal, with my 
acknowledgments for the favor, the enclosed dispatch from the United 



CASE OF THE BLACK WARRIOR, ETC 123 

States consul for the port of Havana, of date February 9, 1852, and to 
inform you that instructions have been issued to Commodore Parker, 
commanding the home squadron, to be upon the alert upon the matter 
referred to. 

I have the honor to be, sir, with high respect, your obedient servant, 

WILLIAM A. GRAHAM. 
Hon. Daniel Webster, 

Secretary of State. 



Mr. Thrasher to Mr. Webster. 

Madrid, March 22, 1852. 

Sir: In your dispatch of December 13 last, to the Hon. D. M. Bar- 
ringer, United States minister to Spain,. as published in the New. York ! 
Herald, you are led into one or two errors, which I beg leave to cor- 
rect. 

You say, " it is much to be regretted that Mr. Thrasher has made 
no communication whatever to this department respecting the circum- 
stances of his case, so as to enable us to see what are the precise 
grounds of his complaint." 

I was arrested at Havana on the 16th day of October. For the first 
five days my arrest was merely an honorable detention ; but no sooner 
had the semi-monthly steamers left for the United States, than I was 
thrown into a dungeon of the prison, and thence transferred to one in 
the Punta castle. For sixteen days, or until after the next semi- 
monthly departure of the steamers, I was kept in strict solitary con- 
finement, with utter deprivation of all communication with the world. 
During this time it was impossible for me to transmit any information 
to the department. 

When I was allowed to see my friends, Mr. Owen, the American 
consul, but lately appointed by the existing administration, came to see 
me, and assured me that he had laid my case fully before the Depart- 
ment of State at Washington. During the time intervening between 
this and my subsequent embarkation for Ceuta, Mr. Owen occasionally 
called at the fortress to see me, and continually expressed his great 
surprise that no communication had come from the Department of 
State in regard to my case ; always assuring me that not only the com- 
munications I made to him, but several that had been made in my be- 
half by my friends, had all been transmitted to the government of the 
United States. Under these circumstances, I judged it superfluous to 
make a direct communication to the department, as I could add no- 
thing to the information already before it. 

You say, " if the official account of the Spanish authorities be correct, 
Mr. Thrasher appears to have expatriated himself, and to have become, 
at least for a time, a subject of the crown of Spain." 

The authorities neglected to inform you, that on the 8th of Septem- 
ber, 1850, in a communication to the Captain General of Cuba, 1 ex- 
pressly and unequivocally refused to take out letters of naturalization, 
and thus become a subject of the crown of Spain. 



124 CASE OF THE BLACK "WARRIOR, ETC 

I embrace the present opportunity to transmit you a copy of a letter 
addressed by me to General Concha upon the subject of domiciliation 
in Cuba, and the trial of American citizens by the permanent military 
commission of that country. 

I submit to you, with much diffidence, the argument it contains, and 
not as my own views only, but as those of some of the first legal attain- 
ments in Spain. Whether yon will find them of sufficient weight to 
induce 3^ou to modify any of the opinions expressed in your letter of 
23d December last to the President, I know not; but it is to be hoped 
they may have some weight with the present rulers of Cuba. 

The world now knows what an extorted afd unwarranted interpre- 
tation was given by the Spanish government, both here and in Cuba, 
to the unfortunate wording of the presidential proclamations in regard 
to expeditions, and you are well aware of the extraordinary pretensions 
that have since been made by the Spanish ministers in relation to the 
right of capture on the high seas, (vide Contoy,) and in subsequent 
questions that have been suscitated between the two governments. 

These facts, and the known disposition of the government of Cuba 
toward American citizens in general, lead me to anticipate the most 
disastrous consequences from the unwarrantable interpretation it may 
give to your letter. 

If the government of C uba was one administered in accordance with 
statute and justice; if the law were respected by its ministers; or even 
if the executive power there, absolute as it is, were guided in its action 
by any fixed principles, I am well aware there is nothing in that letter 
which would endanger the person or the property of a single American 
citizen. But while such is not the case; while not only existing laws 
are disregarded, but new ones are continually "decreed" by the arbi- 
trary will of one man, as circumstances may seem to him to require; 
while the ministers of justice, and the administrators of executive 
power-, seem animated solely by one idea, that a war of races exists, 
what interpretations and what actions therein may we not dread? 
• To prove to you that I do not speak from personal feeling alone, I 
will cite, a well-known fact in the history of that same permanent ex- 
ecutive military commission, which claims jurisdiction over all Ameri- 
cans in Cuba. I will only premise that, in 1778, torture was declared 
by Charles III. to be " barbarous and infamous," and was expressly 
prohibited in Spanish tribunals ; and that when the inquisition fell be- 
fore the decree of the famous Cortes of Cadiz, in 1812, that last relic 
of the barbarous ages disappeared even from the ecclesiastical tribu- 
nals of Spain. 

In 1844-'45, in the trials during the execrated invention of a "black 
conspiracy," hundreds of negroes died under the lash, tied to ladders 
by order of the permanent executive military commission ; and, in con- 
sequence of confessions thus extorted, hundreds of others were sent to 
the presidios and mines of Spain, (to the presidio of Seville alone 
were sent over 450 ;) large numbers were executed ; and how many 
died in prison, or immediately after their liberation, can never be known. 
There were not wanting both American and English victims in this 
iniquitous affair. Many engineers and even proprietors were arrested, 
not a few of whom died during imprisonment, or in consequence of the 



CASE OF THE BLACK WARRIOR, ETC 125 

sufferings they then experienced. The sequel is instructive. Pedro 
Salazar, the tool, fiscal of the military commission, followed his victims 
condemned to the presidio of Seville. Leopaldo O'Donnell, the master 
spirit, Captain General of Cuba, retired to Spain with something more 
than one million of dollars, the fruit of three years' loyal administration 
of the government. Shall we abandon our countrymen to the tender 
mercies of such a tribunal and such a government ? 

I have the honor to be your very humble servant, 

J. S. THRASHER. 

Hon. Daniel Webster, 

Secretary of State, U. S. 



Mr. Webster to Mr. Sharkey. 

[No. 16.] Department of State, 

Washington, July 5, 1852. 

Sir : Referring to the dispatch from this department, addressed to 

you under date of April 7, in which the receipt of your letter on the 

law of domicil, as understood in Havana, was acknowledged, I have 

•now to inform you that the subject has received the full consideration 

which its importance demands. 

The official dispatch to Mr. Barringer, on the 13th of December 
last, and the communication to the House of Representatives of the 23d 
of the same month, in respect to the case of Mr. John S. Thrasher, 
were particularly confined to the state of facts which, at that time, had 
been placed before the department. Upon the law and the facts, as 
they wexe then presented, it was considered doubtful whether Mr. 
Thrasher could rightfully claim the privileges secured to American 
citizens by the treaty of 1795. But it was carefully stated, in each of 
the communications above referred to, that no communication addressed 
to the department had been received from Mr. Thrasher himself, and 
that it was a matter of regret that the department had not before it his 
own statement of the case. 

Since that time additional information has been obtained from your 
own dispatch, as well as from other sources, respecting the Spanish 
law of domiciliation, both in regard to its practical operation and the 
manner in which it has been construed by the Spanish authorities them- 
selves, and by foreigners who have taken out letters of domiciliation. 

It appears that the royal proclamation of October 21, 1817, by 
which provision was made for domiciliating foreigners, was issued at the 
request of the civil authorities of Havana, for the purpose of increasing 
the white population of the island of Cuba, by Spaniards from the pen- 
insula and the Canary islands, and by emigrants from friendly European 
nations. The reasons assigned for its issue were, the small number of 
inhabitants in proportion to the extent of the island, the condition of its 
agriculture, and its limited physical resources ; so that "one of the most 
important possessions of the royal crown was unpeopled and defence- 
less, and its fields without cultivation." Many privileges were granted 
to those who took advantage of the invitation thus extended to them — 



126 CASE OF THE BLACK WARRIOR, ETC 

such as exemption from taxation for fifteen years, perfect liberty to 
return to their native country at any time during the first fiva years, 
and free exportation of the property which they brought with them. 
As they were " strangers," they had permission to leave in case of war 
with their native country. 

These and other parts of the proclamation exhibit very clearly its 
intent — that there was no disposition on the part of the Spanish authori- 
ties to exercise the power of forcibly domiciliating foreigners, even if 
such power were not contrary to all natural law. It is true that, on 
his arrival, the foreigner was required to take out a domiciliatory letter ; 
but, according to the Spanish law, this " simply authorized a foreign 
subject to reside in the island more than thre% months, and to employ 
himself in commerce, or any other useful industry," and, it may be 
added, that any conditions or restrictions introduced into the domicilia- 
tory oath inconsistent with the letter and spirit of the royal proclama- 
tion above referred to, or the provisions of Spanish law, must neces- 
sarily be null and void. 

It does not appear that the foreigners who came to the island and 
took out letters of domiciliation considered that, by so doing, they for- 
feited their rights of citizenship in their respective countries, or assumed 
any obligations inconsistent therewith. This, too, appears to have 
been the general understanding of the Spanish authorities themselves. 
Throughout the whole Spanish law there is observed a wide distinc- 
tion between domiciliation and naturalization. This is fully admitted 
in the communication of Mr. De la Concha to Mr. Calderon, of May 28, 
1851, and also in the 14th and 24th articles of the above-mentioned proc- 
lamation. Thus it appears that, notwithstanding the terms of the oath 
of domiciliation are so strict, yet, taken in connexion with the provisions 
of the law above cited, the American residents in Cuba have never, in 
point of fact, regarded themselves as having changed their allegiance by 
taking out letters of domiciliation. They appear to have considered 
these letters as mere formal requisites to an undisturbed temporary 
residence for commercial or other business purposes. In point of fact, 
it is believed that these papers are usually procured by purchase — that 
no oath is taken, and no act done on the part of the American resident, 
except the payment of a small fee. Change of domicil is matter of in- 
tention, and notwithstanding residence in fact, there must be the animus 
manendi. Change of allegiance, which is manifested by the voluntary 
action, and usually by the oath of the party himself, ought always to 
be accomplished by proceedings which are understood, on all sides, to 
have that effect. It is certainly just that acts, which are to be regarded 
as changing the allegiance of American citizens, should be distinctly 
understood by those to whom they are applied as having that effect ; 
that the practical as well as theoretical construction of such acts should 
be unequivocal and uniform ; and that no acts should be. deemed acts 
of expatriation, except such as are openly avowed and fully understood. 
I am, sir, &c, 

DANIEL WEBSTER. 

Wm. L. Sharkey, Esq., 

United States Consul, Havana. 



CASE OF THE BLACK WARRIOR, ETC 127 

Mr. Everett to Mr. Brooh. 

Department of State, 

Washington, January 8, 1853. 
Sir : In respect to the oath of domiciliation required to be taken by- 
residents in Cuba, a copy of which you requested yesterday at the de- 
partment, permit me to refer you to executive document No. 14, House 
of Representatives, 32d Congress, 1st session, and to the letter and 
accompanying papers of Mr. Owen, No. 32, which embrace all the forms 
you desire. 

I regret that I cannot enclose a copy, as the department receives but 
five copies of Congressional documents, and there is no copy now re- 
maining. 

I have the honor, &c, 

EDWARD EVERETT. 
Hon. James Brooks, 

House of Representatives. 



Mr. Hayes to the Secretary of State. 

Washington, March 10, 1853. 

Sir : I would respectfully call your attention to the accompanying 
letter of J. S. Thrasher. 

I have the honor to be, sir, very respectfully, your ob't servant, 

JOHN L. HAYES, Counsellor at Law, Washington. 
Hon. Secretary of State of the United States. 



To the honorable Secretary of State for the United States of America. 

John Sidney Thrasher, a native of the city of Portland, in the State 
of Maine, late a resident in the city of Havana, island of Cuba, would 
respectfully lay before the Department of State the following facts, 
and ask the intervention of the government of the United States of 
America in the prosecution of his claim against her Catholic Majesty 
the Queen of Spain. 

In the month of August of the year 1850, the exponent became pro- 
prietor of a daily journal, published in Havana, styled the "Faro Indus- 
trial de la Habana ;" and, confiding in the reciprocal rights usually 
accorded by friendly powers to citizens or subjects of any other power, 
and in the stipulations of existing treaties between the government of 
the United States of America and her Catholic Majesty, and in the ex- 
isting rule by royal decree, in Spain, that rights not stipulated for for- 
eign citizens or subjects by treaty shall be enjoyed by these in the 
dominions of Spain, in a like and reciprocal manner as may be enjoyed 
by Spanish subjects in the country to which such foreign citizens or sub- 
jects may owe allegiance, exponent desired to continue the publication 
of said journal in the city of Havana for his use and advantage. But 
on or about the 6lh day of September of same year, 1850,, Don Fred- 
erico Roncali, then Governor and Captain General, did arbitrarily issue 
a decree, directed to exponent, by the terms of which exponent was 
prohibited from publishing any newspaper in the island of Cuba, unless 



128 CASE OF THE BLACK WARRIOR, ETC. 

he should first take out letters of naturalization, and become a subject 
to the crown of Spain. This exponent refused to do, and made the 
same known to Don Frederico Roncali, Governor and Captain General 
of the island of Cuba, by a communication, bearing date on or about the 
8th of September, 1850 ; and exponent was necessitated to abandon 
his undertaking, to his very great loss and detriment. 

For the losses and damages thus caused to exponent he claims remu- 
neration to him by the Spanish government in the sum of one hundred 
and fifty thousand dollars. 

And exponent would further make manifest to the Department of 
State, that, on the 16th day of October, 1851, while residing in Hav- 
ana, in the peaceful and lawful pursuit of his avocations, he was 
arrested by order of the government of the island of Cuba, without 
the manifestation of any charge against him ; was thrown into a vile 
and loathsome dungeon in the common jail ; was thence removed to one, 
more filthy and loathsome still, in the Punta fort ; was deprived of all 
intercourse with his friends ; was subjected during many clays to a harsh, 
inquisitorial, and most severe interrogation, during which the govern- 
ment had the aid and assistance of the most profound legal knowledge 
and advice, while exponent was denied all counsel ; was charged with 
the crime of constructive treason to a government to which he owed no 
allegiance ; was arraigned before a military tribunal, with continued 
deprivation of legal advice ; was put in the most imminent peril of his 
life, having been informed that the judges who sentenced him were 
three for sentence of death, and four for sentence to the galleys ; was 
denied all legal defence ; was sentenced to eight years labor in chains 
in Africa; was sent a prisoner to Spain ; was thence transferred to the 
penal settlement of Ceuta, in Africa, where he was put in chains; and 
was finally liberated by a royal order of her Catholic Majesty, which 
expressly recognises his American citizenship, and prohibits his return 
to any colony of Spain. 

For the injury done to exponent in the breaking up of all his plans 
and prospects in life by this arbitrary, unjust, and unwarranted proce- 
dure ; for the moral and physical suffering which he was compelled to 
undergo ;- for the peril of limb and life to which he was subjected ; for 
the moral stigma inflicted upon him, and for remuneration of the great 
losses and expenses to which he was thereby subjected, he claims from 
the Spanish government the sum of three hundred and fifty thousand 
dollars. 

And exponent would respectfully solicit of the Department of State 
its interposition in his behalf, and its urgent prosecution, in every proper 
manner, of this his claim against her Catholic Majesty, as the only 
means whereby he can obtain justice. 

And exponent would further solicit, that the Department of State 
recognize and assist A. H. Lawrence, esq., of Washington, exponent's 
duly constituted attorney in this matter, in his prosecution of this expo- 
nent's claim, and in the obtaining of justice. 

And exponent has the honor to be, respectfully, &c, &c. ' 

J. S. THRASHER. 

Alexander H. Lawrence and John L. Hayes, of the city of 
Washington, counsellors at law, attorneys for J. S. Thrasher. 



CASE OF THE BLACK WARRIOR, ETC. 129 

Mr. Marcy to Mr. Hayes. 

Department op* State, 

Washington, March 12, 1853. 
Sir : In answer lo your letter of the 10th instant, on the subject of 
the claim of Mr. J. S. Thrasher against the government of Spain, I 
have the honor to inform you, that a proposition has been recently made 
to Spam, and other powers, for the organization of a board for the 
mutual adjustment of all existing claims between the respective gov- 
ernments. Sufficient time has not elapsed to enable the department to 
learn whether Spain will accede to the proposition. 

I am, sir, respectfully, your obedient servant, 

T TT W. L. MARCY. 

John L. Hayes, 

Counsellor at Law, Washington. 



Mr. Marcy to Mr. Lawrence. 

Department of State, 

Washington, April 12, 1853. 
Sir : In reply to your letter received this day, desiring a copy of 
such instructions as may have been issued to the United States consuls 
toy this department, in relation to the citizenship of Americans residing 

5 -fn pa ?!?T \ S l ands ' Z beg ieave t0 refer y° u t0 House document? 
No. 10 and No. 14, 1st session, 32d Congress, which contain the pro- 
visions of the Spanish laws on the subject of citizenship and domicil, 
with the construction that has heretofore been given to those provi- 
sions by this department. r 

I also inclose a copy of a letter addressed to the United States con- 
sul at Havana, on the -5th of July last, in which reference is made to 
the above-mentioned documents, explanatory of the rights enioved bv 
citizens of the United States in Cuba. J J J 

I am, sir, &c, 

A u T „ W. L. MARCY. 

Alexander H. Lawrence, Esq., 

Washington. 



CASE OF THE STEAMER FALCON. 
Mr. Owen to Mr. Webster. 




Commercial Agency of the United States, 

Havana, August 17, 1851. 
Sir : When I closed my letter on yesterday evening, it was sup- 
posed that the mail bag would then soon be sent to the steamer ; as the 
bag wlII be open till 8 o'clock this morning, I am afforded an opportu- 
nity to state to you that Lieutenant Rogers, commanding the United 
btates mail steamer Falcon, called at this office late yesterday evening 



130 CASE OF THE BLACK WARRIOR, ETC 

and complained of the conduct of a Spanish commander of a steamer, 
who boarded the Falcon off the Cabanas, about forty miles from this, 
on his way from • Chagres to this port, with the mails, $1,500,000 in 
gold, and a large number of passengers. 

He says he had previously been chased by another Spanish steamer, 
say for two hours. He says that the first steamer referred to in this 
communication fired over his stern and bow four or five times, and 
that upon being hailed, he stopped and demanded to know what was 
wanted. In answer, he was asked the name of his vessel ; when he 
replied, " it is strange you do not know — it is the Falcon ; a United 
States steamer, which has been here constantly for the past three 
years." He informed me that he spoke in an angry tone to the officer 
who boarded him, and said that he should not be detained by him, and 
that if he had any business it must be done quickly, as he was bound 
to Havana, and he should go on. Had it not been for the large amount 
of gold and large number of passengers, the commander of the Falcon 
thinks he would have fired into the Spanish steamer. He says that he 
has been informed by some of the passengers, that at the time he 
" came "to," when hailed, the officers on the Spanish steamer took off 
hats or caps, and " hurraed," he now believes insultingly. He ended 
by saying, that at the time he was boarded he believed this port to be 
in a state of blockade, otherwise he would have resented the conduct of 
the Spaniards notwithstanding his cargo and passengers. 

I called upon the Captain General, who expressed much regret at 
what had occurred between the Falcon and Spanish steamers, and said 
he would see that it should not be so in future ; that there was a new 
vessel out here, and that it must have been the officer of her that had 
so acted. I told him that the officer had expressed a hope that he 
should not be blamed, as he acted under orders (perhaps) from the 
general of marine. The Captain General said it could not have been 
by the order of the general of marine. 

I think Commander Rodgers said his flag was hoisted at the time of 
the occurrence. 

The Captain General having enclosed his reply to me for the captain 
of the Albany, I said I had sent it to Captain P. He asked me if I 
had read it ; said I had not, when (he) added, it would be entirely sat- 
isfactory. It is said that the hisses and curses that met the Albany 
and Vixen on coming in was not from the people generally, but from 
some excited persons. 

I have the honor to be, with great respect, your obedient servant, 

A. F. OWEN. 

Hon. Daniel Webster, 

Secretary of State 



United States Mail Steamer Falcon, 

Havana, August 17, 1851. 

Sir : I desire to make to you the following statement, and through 
you to forward a copy of it to the Hon. Secretary of State : I have to 



CASE OF THE BLACK WARRIOR, ETC 131 

complain that on the 16th instant, being on my regular voyage from 
Chagres to Havana, having on board the United States mails from 
California, with 211 passengers, and specie to the amount of a million 
and a half of dollars, when in sight of the port of Bahia Honda, and 
about fifteen miles from the land, I discovered a Spanish steamer-of-war 
in chase. I hoisted the United States ensign and pennant, and a blue 
flag at the fore, with " U. S. Mail" in large letters in its centre, and 
continued on my course for Havana, then distant about fifty miles. 

I found the Spanish steamer to run very equally with us, and 
although not gaining, she continued in chase about four miles astern. At 
9 o'clock I discovered another steamer coming out from under the land, 
apparently with the object of intercepting us. Approaching us at a 
large angle with our course, she commenced firing astern of us before 
she was in range, and upon her nearer approach I discovered her to 
be a steamer called the Almandares, recently, I believe, a packet 
between Matanzas and Havana ; that she was armed with two guns, 
apparently 32-pounders, and with numerous soldiers and officers on 
board, the former drawn up on her deck in a threatening attitude. 

She fired three shotted guns, apparently with the purpose of bringing 
us to, but I still kept my course. Being faster than the Falcon, 
she at length ranged alongside within hail, fired a musket, and hailed 
us to stop. I slowed the engines to enable them to communicate by 
hail more distinctly if they wished, but they still continued to call 
loudly to us to stop. After some deliberation, thinking that possibly 
the port of Havana might be blockaded, and unwilling to jeopard 
the lives of the passengers by resisting their force, I stopped, and they 
immediately sent an officer on board in a small boat. Upon demanding 
of him what he wanted, he said that he wished to know what ship it was. 
I told him the Falcon, and that it was strange that he did not know 
what ship, since she had been running to Havana every fortnight for 
the last three years. He asked me to go on board the Almandares, 
which I refused to do. He then asked me if there were any Spanish 
passengers on board, and I replied no. He then got into his boat, and 
told me to wait until he communicated with his superior ; and I told 
him that I must hasten, for I could only wait long enough lor him to 
reach his vessel, which in fact I did. The whole detention may have 
amounted to twenty minutes or half an hour. 

When I asked the officer who came on board what their conduct in 
stopping the ship meant, he said that I must not blame him; he was 
only acting under orders. 

The steam-frigate had, in the meantime, ranged up within shot ; and 
after we again proceeded on our course, the Almandares was seen to 
communicate with her, and both of the Spanish vessels stood back 
again to the westward. 

I had forgotton to say that it was remarked by the passengers of the 
Falcon, that upon our stopping, the officers on the deck of the Alman- 
dares waved their caps about their heads, and cheered — whether in 
exultation, or with what motive, I cannot tell. 

All of the foregoing matter I conceive to be subject for protest ; and I 
hereby declare, that for no other consideration but the lives of de- 



132 CASE OF THE BLACK WARRIOR, ETC 

fenceless passengers on board, would I have refrained from using the 
force of the ship in resisting the indignity offered us. 
Very respectfully, 

HENRY RODGERS, 
Lieut. U. S. .N., commanding V. S. M. Steamer Falcon. 
A. F. Owens, Esq., 

U. S. Commercial Assent, Havana. 



Mr. Derrick, Acting Secretary, to Mr. Calderon. 

Department of State, 

Washington, September 13, 1851. 

The undersigned, Acting Secretary of State of the United States, 
finds it his duty to place before Don A. Calderon de la Barca, envoy 
extraordinary and minister plenipotentiary of her Catholic Majesty, the 
enclosed copy of a formal communication, of the 17th ultimo, from 
Lieutenant Henry Rodgers, of the United States navy, commanding the 
United States mail steamer "Falcon," to Mr. Owen, the commercial 
agent of the United States at Havana, which contains a complaint 
and statement of facts relating to an insult offered to the flag of the 
United States by the " Almandares," one of her Catholic Majesty's war 
steamers, during a recent voyage of the " Falcon" from Chagres to 
Havana. 

The undersigned is fully aware that occasions may arise in which 
the detention and search by a man-of-war, of a suspected vessel sailing 
under the flag of a friendly power, might be excusable ; but this right 
of visitation is a belligerent right, and he cannot readily perceive what 
circumstances would justify the detention and visitation of a mail steamer 
like the "Falcon," a vessel which for a number of years has regularly 
visited Havana, and was, at the time of this occurrence, within some 
fifty miles of that port. The Spanish officer of the " Almandares," who 
came on board the "Falcon," seems to have been himself conscious of 
the gross impropriety of thus stopping a steamer in the service and 
under the flag of a friendly nation, since he apologized for the part 
which he had taken in this extr ordinary visit, by stating that he was 
simply acting under orders. 

The undersigned is not prepared to say what influence intelligence 
of the indignity offered on this occasion to the American flag may have 
had in exciting a part of the population of New Orleans to those deplo- 
rable acts of violence to which Mr. Calderon invites attention in his notes 
of the 26th and 29th ultimo, and of the 5th instant ; but he may 
remind Mr. Calderon that the news of the "Falcon's" having been stop- 
ped and visited by one of her Catholic Majesty's war steamers, had 
reached New Orleans on the morning of the same day on which those 
unfortunate disturbances took place. It is not, however, with any view 
of extenuating the outrages of which Mr. Calderon complains in his 
notes above referred to, but in the expectation that her Catholic 
Majesty's minister may be able to furnish the government of the United 
States with a satisfactory explanation of the detention and visitation of 



CASE OF THE BLACK WARRIOR, ETC 133 

the "Falcon," that the undersigned addresses this note to Mr. Calderon, 
and has the honor to request an early answer. 

The undersigned avails himself of this occasion to renew to Mr. Cal- 
deron the assurances of his high consideration. 

W. S. DERRICK, 

Acting Secretary. 
Senor Don A. Calderon de la Barca, 

&fc, &fc, fyc. 



Mr. Calderon to Mr. Derrick. 

[Translation.] 

Legation of Spain in Washington, 

September 29, 1851. 

The undersigned has received the note which the Acting Secretary- 
did him the honor of addressing on the 13th instant, enclosing a copy 
of a report presented to Mr. Owen, commercial agent of the United 
States at Havana, by Henry Rodgers, esq., captain of the Falcon, 
relative to the detention which he had been compelled to undergo by 
her Catholic Majesty's war steamer Almandares, on his way from 
Chagres to Havana, with the public mail on board. The Acting Sec- 
retary of State asks the undersigned to give him some explanation of 
this occurrence, begging him not delay sending an answer. 

Although the undersigned, in consequence of his not being yet in 
possession of authentic details, knows very little more of this affair 
than what has been published in the newspapers of the United States, 
and the narrative of Captain Rodgers is an ex parte statement, he 
nevertheless thinks it not inappropriate to the occasion to submit, as he 
does, some reflections to the enlightened consideration of the Acting 
Secretary of State. 

In the first place, although the Falcon carries the United States mail, 
she is a merchant vessel, and performs this service by contract. In 
this character, as a merchant vessel, she is clearly established by the 
additional fact that she receives pay for passage and for transportation 
of goods, not on account of the government of the United States, but 
for the benefit of the Steam Company, the agencies of which are estab- 
lished at various points throughout the United States. At the time 
when the Falcon made her appearance in the vicinity of Bahia Honda, 
a considerable number of American citizens had, a few days before, 
landed near that port, which they invaded by force of arms, perpetrat- 
ing deeds of violence and of blood. 

In order to repel this perfidious profanation of Spanish territory, it 
had been found necessary to assemble vessels of war and some of her 
Majesty's troops, which came in contact with the invaders, who had 
thus caused an unheard-of state of war to exist. 

The invaders had been taken there by the American steamer Pam- 
pero, from New Orleans, whence they had sailed with the knowledge 
and consent of the authorities, whose duty it was to have prevented 



134 CASE OP THE BLACK WARRIOR, ETC. 

them. The Pampero had stopped at Key West, for the purpose of 
waiting for a favorable opportunity to cross the short distance which 
separates that point from the island of Cuba, in order to make sure of 
the bold stroke which they contemplated. She had, also, left Key 
West without impediment or hinderance, landing her infamous freight 
of passengers on the shores of Bahia Honda, and returned for reinforce- 
ments. She was every moment expected ; and the Pampero had also 
been employed before in carrying the United States mail. Other 
steamers from various points of the United States, with ammunitions, 
arms, and men, were also expected ; and the authorities of the island 
of Cuba, as well as the undersigned, had been informed that the 
schemers of these periodical piratical invasions had been in negotiation 
with the owners of the Falcon in order to purchase this very vessel 
from them, with a view of eluding vigilance and carrying out their in- 
famous designs ; treacherously hiding those designs under the folds of 
the American flag, and of her previous character as mail-carrier. But 
whether this accusation be correct or otherwise, the Falcon might have 
changed owners in Chagres, or have fallen into the hands of the pi- 
rates during her passage. Vattel, who certainly is not over-indulgent 
in the matter of detention and the right of search, expresses himself 
thus : 

" The transportation of contraband goods cannot be prevented, if 
neutral vessels which are met with at sea are not visited. The right 
to visit them, therefore, exists. At this day, any neutral vessel which 
should refuse to submit to such visit, woulr] be condemned, on that ac- 
count alone, as a lawful prize." 

A very modern author, (Richard Widman, chapter on the right of 
capture,) who has made a compilation of whatever has been considered, 
down to this day, as established and generally agreed upon in relation 
to this subject, speaks thus : " Every vessel is bound to submit to visi- 
tation and search, whether it be the vessel of a friend or of an ally, or 
even of a subject; and submission may be compelled, if necessary, by 
force of arms, without giving claim to any damages incurred thereby, 
if the vessel, upon visitation, should not be found liable to be de- 
tained. No circumstances can dispense with this obligation. A vessel 
is not excepted either by its build or by its flag ; such circumstances 
furnish no proof of the national character of the vessel." 

The same principles are asserted by Judge Kent, Wheaton, and 
by other public writers and eminent American jurisconsults, with whom 
the Acting Secretary of State is better acquainted than the under- 
signed. 

If this, therefore, be the doctrine and the practice of civilized people, 
and if it be true that the Falcon is a merchant vessel, and that she was 
momentarily detained in the waters within the jurisdiction of the coun- 
try to which the ship-of-war which detained her belonged, in sight of 
a port which had been invaded by armed Americans, who were still 
carrying on hostilities waged by them against a foreign territory, the 
undersigned, so far from seeing in the circumstance of that detention, 
caused for the purpose of ascertaining the character and destination of 
the Falcon, any cause of complaint on the part of Captain Rodgers, pre- 
fers, on the contrary, such complaint on the part of the nation the sig- 



CASE OF THE BLACK WARRIOR, ETC 135 

nals of whose ship-of-war said captain disregarded, especially as Cap- 
tain Rodgers, who had been in New Orleans, could not be ignorant of 
the preparations which were going on there, publicly and without dis- 
guise, for an invading expedition against Cuba. 

The aforesaid Captain Rodgers remarks that he has made various 
uninterrupted voyages to Havana. If he was never troubled before, he 
ought to have supposed that some imperative cause existed then to call 
for such a course. 

Captain Rodgers remarks that the Spanish officer who boarded his 
vessel alleged, as an excuse for the act, the necessity he was under to 
obey the orders of his chief; and from this the inference is made that 
some irregularity had been committed. The undersigned is under the 
impression that Captain Rodgers did not clearly understand what the 
Spanish officer said. 

Even in the cheers given by the crew of the Almandares, which may 
probably have been the usual salute exchanged between sailors when 
two vessels separate, or when they descry a friendly craft, Captain Rod- 
gers desires to spy out an insult. In saying that on that occasion the 
Almandares was commanded in person by Don Jose Bostillo, com- 
manding general of the Havana station, is to say more than enough, in 
order to put an end at once to so malicious an insinuation. A gentle- 
man, and a Spanish admiral, would never have allowed a crew to in- 
dulge in any such vulgar and insulting demonstrations. 

If, on the other side, the circumstance of the Falcon's detention 
should have contributed, unfortunately, another element of provocation, 
as the Acting Secretary believes, in creating the infamous disturbances 
which occurred in New Orleans, it is more natural to attribute the fact, 
not to the circumstance of the detention itself, which is so simple and 
so justifiable, but to the seditious and inflammatory manner in which 
that circumstance was alluded to in several of the newspapers. 

The undersigned avails himself of this occasion to renew to the Act- 
ing Secretary of State the assurances of his high consideration. 

A. CALDERON DE LA BARCA. 

Hon. W. S. Derrick, 

Acting Secretary of State of the United States. 



CASE OF THE SCHOONER LAMARTINE. 

Mr. Worrell to Mr. Marcij. 

Consulate of the U. S. of America, Matanzas, 

February 25, 1854. 

Sir : I have the honor to enclose copies of a letter from Mr. Henrj* 
Harris, my agent at Cardenas, my letter to the senior United States 
naval officer at Havana, and my letter to the Captain General of Cuba, 
relative to an outrage committed on an American schooner in the Gulf 
of Mexico, on her passage from Mobile to a port in my consulate. I 
hope, sir, the time has now arrived when an explicit, full, and une- 
quivocating demand will be made for redress upon this government. 



136 CASE OF THE BLACK WARRIOR; ETC 

These insults have been so frequent, their contempt so great, that we 
have become the object of ridicule to all about us. I hope, in the in- 
vestigation, reference will be made to the false statements made by- 
even the Captain General, as well as other officers of this government, 
in the case of the abduction from New Orleans, and let no equivoca- 
tion screen the perpetrator of this gross outrage upon our flag. Let the 
demand be commensurate with the act, compel the redress to be equal 
to the outrage, and let Americans here be able to chime with that glo- 
rious sentiment uttered on the back porch of the Capitol, " That flag 
shall protect an American citizen wherever his foot shall be placed," 
and then, sir, Americans abroad will know they are safe. 

I have the honor to be, &c, &c, &c, 

EDWARD WORRELL, 

United States Consul. 

Hon. W. L. Marcy, 

Secretary of State, &fc, &fc 

P. S. — I have no doubt this is a part of a fleet crusing after " filli- 
busteroes," and they will make that an excuse. A copy of Mr. Harris's 
letter will be found in the one to the senior officer of the United States 
squadron, Havana, therefore unnecessary to add separately. 



Consulate of the U. S. of America, Matanzas, 

February 25, 1854. 

Sir : I hasten to inform you of the contents of a letter received from 
my agent at Cardenas to-day, viz : 

"The schooner Lamartine, of Camden, Geo. W. Thorndyke, master, 
arrived at this port on Wednesday, February 22d, and reports the fol- 
lowing as an extract from his log-book : 

" ' Thursday sea-account, February 16, 1854. — A brig displayed 
Spanish colors to the American schooner Lamartine, from Mobile, 
bound to Cardenas, island of Cuba, at 4.30 p. m., latitude 27° 14', 
longitude 85° 25' west from Greenwich. A flag was discovered flying 
at the brig's main gaff end, which was promptly answered through 
courtesy, and whilst hoisting our flag we were fired at by the brig. 
The ball came within forty yards of the schooner, endangering the 
vessel arid lives of those on board. This a solemn protest against an 
outrage perpetrated by a Spanish vessel on an American vessel, in 
American waters, pursuing a lawful trade.' 

"The said brig was about three-fourths of a mile astern of the schoo- 
ner, and after firing she stood on her course, and was in company with 
her two days after. 

" Respectfully, &c, &c, 

"HENRY HARRIS, 
" United States Consular Agent. 

"Edward Worrell, Esq., 

" United States Consul, Matanzas." 



CASE OF THE BLACK WARRIOR, ETC 137 

Above you have the history of a gross outrage committed on our 
flag, and I lay before you the history for your consideration, but I hope 
you will take immediate and prompt action in the matter. I would 
advise that the Fulton go to Cardenas and ascertain the full particulars,, 
and then cruise after the insulter and force an apology or punish his 
insolence. I have written to the Captain General, and I shall send a 
copy of the letter to the Secretary of State. 
Yours, respectfully, 

EDWARD WORRELL, 

United States Consul. 
To the Senior Officer 

United States Squadron, Havana. 



Consulate of the U. S. of America, Matanzas, 

February 25, 1854. 

Most Excellent Sir : I enclose a copy of a letter I have this day 
received from my agent at Cardenas, which you will see describes an 
outrage upon the American flag by a Spanish war vessel. I cannot 
conceive what cOuld have induced this high-handed measure by a 
national vessel of Spain, nor have I an opportunity of knowing what 
vessel it can be ; but as Havana is the port from whence the fleet for 
the protection of the island sails, and the headquarters of the squadron 
on duty here, your excellency must know what vessels are at sea. 
Your excellency must be aware of the nature of this offence — at our 
very doors, upon the Gulf of Mexico, the very spot that Cuba com- 
mands as the key of the west and the southwest of the United States, 
the last spot upon the wide sea that such an act should have been com- 
mitted, if it was expected to retain the friendly relations with the United 
States which so happily exist at the present time, and participated in 
by a large majority of the people. I cannot believe, your excellency, 
that my government will tamely submit to have a vessel of that gov- 
ernment fired at by a foreign vessel-of-war whilst in the legitimate and 
peaceable pursuit of trade, and I therefore make this representation to 
your excellency that you may exercise your own good judgment in 
preventing a repetition, as well as to investigate the cause of this unau- 
thorized and unsupported outrage upon the flag of a friendly power. 

I shall immediately inform the Secretary of State of the facts above 
presented, as well as forward him a copy of this letter to your excel- 
lency. In the mean time I have addressed the senior officer of the 
United States navy in the harbor of Havana, and requested him to 
pursue such course as his judgment will dictate for the future protection 
of American vessels traversing the Gulf or the Atlantic between this 
and the United States. 

With high consideration, I have the honor to be, your excellency's 
obedient servant, 

EDWARD WORRELL, U. S. Consul 

His Excellency the Marquis Pazuda, 

Governor and Captain General, fyc, of the Island of Cuba* 



138 CASE OF THE BLACK WARRIOR, ETC. 

Mr. Worrell to Mr. Marcy. 

[Extract.] 

[No. 11.] Consulate of the U. S. of America, Matanzas, 

March 4, 1854. 
Sir : In my dispatch of the 25th February, numbered 10, I informed 
the department of the attack by a Spanish brig-of-war upon an Ameri- 
can schooner on her passage from Mobile to Cardenas, and that I have 
communicated with the Captain General upon the subject. I now have 
the honor to enclose a translation of his reply, received at this office 
three days ago. I will in a few days transmit to the department the 
affidavits of the officers and a portion of the crew relative to the matter. 

I am, very respectfully, your obedient servant, 

EDWARD WORRELL, 

t United States Consul. 
Hon. W. L. Marcy. 



Government and Captaincy General 

of the Island of Cuba, March 1, 1854. 
Sir : His excellency the Governor and Captain General has re- 
ceived your communication of the 25th ult., (February.) The deed 
does not appear probable. He will inform himself, and will give an 
account to our representative in Washington, for the intelligence of 
both governments. 

Which, by order of his excellency, I say to you in reply ; remaining 
Your obedient servant, 

JOSE ESTEVAN, 
The Secretary of Government. 
To the Charge (Encargado) 

of the Consulate of the United States in Matanzas. 



Mr. Worrell to Mr. Marcy. 

[No. 12.] Consulate of the U. S. A., Matanzas, 

March 9, 1854. 
Sir : In my dispatch No. 11, under date of the 4th instant, I for- 
warded a copy of the Captain General's reply to my communication 
to him, complaining of the attack of a Spanish brig-of-war on an Amer- 
ican schooner from Mobile to Cardenas, a full statement of which in 
my dispatch of February 25, No. 10, was forwarded to your depart- 
ment. I now have the honor to enclose a communication under oath 
of the captain, mate, and part of the crew, which shows a direct, 
wilful, and outrageous violation of treaty stipulations, as well as shame- 



CASE OF THE BLACK WARRIOR, ETC. 139 

ful insult to the flag of the United States, and hope it will receive the 
attention its importance deserves. 

I am sir, very respectfully, your obedient servant; 

EDWARD WORRELL, 

United States Consul. 
Hon. William L. Marcy, 

Secretary of State, fyc, 8fc. 



Consulate of the U. S. of America, Matanzas. 

Interrogatories and answers given by George W. Thorndyke, Henry 
L. McKee, mate, and Charles M. Smith, Wm. Harrison, seamen of, 
and belonging to the schooner Lamartine, of Camden, Maine, said 
vessel having been fired at by a Spanish brig of-war while on her 
passage from Mobile, Alabama, to Cardenas, Cuba, in lat. 27° 24' 
north, long. 85° 25' west. 

1. How did the brig bear when first discovered ? 

Answer. The brig bore, when first discovered, nearly southwest by 
west, with her larboard tacks aboard and by the wind. 

2. Did she run for the schooner ; and if so, what were her actions on 
approaching her ? 

Answer. The brig was heading east-northeast nearly, and kept on her 
course by the wind until night set in. She did not change her course 
before or after she fired at the Lamartine, as we perceived. 

3. Did those on board the schooner observe her all the time after her 
first discovery until she signalized the schooner ? 

Answer. We on board the Lamartine, captain, crew, (and one pas- 
senger, E. Dansville, who was much frightened,) saw the brig before 
we could see her signal, it being hid by her sails from our view, if set, 
but saw her signal nearly as soon as it could be seen in her position 
from the schooner. 

4. How long after signal was raised was it before the schooner an- 
swered by her flag? 

Answer. The time could not have been more than ten minutes after 
the brig's signal was discovered when the Lamartine's ensign was run 
up to her main peak ; and when in the act of setting our flag in plain 
view of the brig, the Lamartine was fired at. 

5. Was there any delay on the part of Captain Thorndyke after he 
saw the signal of the brig; and if so, what was the cause of that delay? 

Answer. There was no delay in setting our signal after seeing the 
brig ; we should be very sorry to depart from that common rule and 
courtesy practised generally. 

6. How does the schooner carry her signal halliards — made fast to 
the end of his main boom or to his crosstrees? 

Answer. The schooner carries her signal halliards at sea at her main 
peak, and made fast at the main boom. 

7. What was the relative position of the vessels when the shot was 
fired? 

Answer. The brig bore, when she fired the shot, about north from 



140 CASE OF THE BLACK WARRIOR, ETC. 

the schooner, and distant from one-half to three-fourths of a mile — the 
Lamartine was heading south, half west. 

8. Where did the shot range — along his length, across his bows, or 
across his stern? 

Answer. The shot ranged along the schooner's length, striking the 
water on our weather beam, scattering the spray for some distance ; 
the ball struck about thirty yards from the schooner, a little forward of 
our beam, if anything. 

9. What was his conduct when he again met the schooner two days 
afterwards ? 

Answer. We saw the brig the two following days, but not near 
enough to ascertain any particular movement of her, or the number of 
guns she mounted, or her name. 

GEORGE W. THORNDYKE, Captain 
HENRY L. McKEE, Mate. 

his 

CHARLES |xj M. SMITH. 

mark, 
his 

WILLIAM M HARRISON. 

mark. 



United States Consular Agency, Cardenas, Cuba. 

Personally appeared before me, Henry Harris, United States Con- 
sular agent for the port of Matanzas, George W. Thorndyke, Henry L. 
McKee, Charles M. Smith, and William Harrison, signers of the fore- 
going document in writing, and made oath that it is their free act and 
deed. 

In testimony whereof, I have hereunto set my hand and affixed the 
seal of the consulate of the United States, at Cardenas, 
aforesaid, this sixth day of March, in the year of our Lord 
one thousand eight hundred and fifty -four. 

HENRY HARRIS. 



[l. s.] 



Consulate of the United States, Matansas, 

March 10, 1854. 

I, Edward Worrell, consul of the United States at the port of Ma- 
tanzas, do hereby certify that the annexed is a true and faithful copy 
of the original document now on file and of record in this consulate. 
In testimony whereof I have hereunto set my hand, and affixed the 
j- -j seal of the consulate, this tenth day of March, one thousand 

•- ' "J eight hundred and fifty-four. 

EDWARD WORRELL, 

United States Consul. 



CASE OP THE BLACK WARRIOR, ETC 141 

CASE OF REY, ALIAS GARCIA. 
Mr. Barringer to Mr. Clayton. 

[Extract.] 

[No. 5.] Legation of the United States, Madrid, 

January 9, 1850. 
g IR . ###*#*#* 

Much concern has been manifested, in private conversation, by influen- 
tial persons connected with the government and ministry of Spain, on 
the subject of the arrest and expected trial of Don Carlos de Espana, 
their consul at New Orleans, for the alledged abduction of Rey. It is 
stated in the newspapers received at this legation by the last mail from 
the United States, that the grand jury, on the testimony of the princi- 
pal witnesses for the prosecution, have refused to find a true bill against 
the defendant. The action of this body will, I presume, put a final 
end to the prosecution. 

It might be important to me to have an official authority for any 
declaration, verbal or written, I may deem advisable to make on the 
subject to the authorities here. And if the prosecution is not termina- 
ted, but still proceeds, I think it important that I should be fully in* 
formed of all the steps taken in its course. 



CASE OF PEDRO RAICES. 
Mr. Robertson to Mr. Matey. 

[Extract.] 

[No. 64.] Consulate of the United States, Havana, 

November 7, 1853. 
g IR .####### 

A serious case has just occurred within four or five days. Pedro Raices 
was taken from his bed at midnight ; his papers were seized : among 
them was, as his wife assures me, his certificate of American citizen- 
ship, which, she says, he refused to let the officers have, but they took 
it by force from him. It is very likely that the certificate is merely 
one to the effect of his having signified an intention of becoming a citi- 
zen when allowed by law. The document was issued, I believe, in 
New Orleans. Mr. Raices is now confined in complete incommunica- 
tion in the Moro castle. His mother and wife have presented themselves 
to me, informed me that he has several children entirely dependent on 
him for support, and begged me to extend to him the protection of this 
consulate. Several other arrests have been made within a few days ; 
among them those of three Creoles, besides Raices, who have certifi- 
cates obtained in the United States. I promised the mother and wife 
of Raices that, in my first interview with the Captain General, I would 
bring the subject to his attention ; and so I did on Saturday, 5th instant, 
although I had no hope of affording them the least satisfaction. You 



142 CASE OF THE BLACK WARRIOR, ETC. 

are fully aware that the government here deny the right, on the part of 
a consul, to meddle in anyway in such matters. The Captain General 
informed me that he was aware, that among the arrested were four 
who had certificates of American citizenship, which he did not intend 
to acknowledge; that he knew them to be conspirators against his gov- 
ernment, and bad men, whom he was going to put on trial ; and if, after 
being tried, they were proved to be guilty, that he would have them 
severely punished. 

I have the honor to be, &c, 

WILLIAM H. ROBERTSON, 

Acting Consul'. 



Mr. Robertson to Mr. Marcy. 

[No. 76.] Consulate of the United States, Havana, 

December 1, 1853. 
Sir : Referring to my dispatch No. 64, under date of the 7th ultimo, 
I beg leave to inform you that the wife of Pedro Raices (whose name 
is mentioned in my said dispatch) came to me this morning, and made 
known that her husband was yesterday allowed, for the first time since 
his arrest, to communicate with his family and friends ; that she imme- 
diately went to the Moro castle, where he is confined, and saw him; 
that he told her he was accused of being an accomplice in the print- 
ing (he is a printer by trade) and publication of papers against the 
Spanish government and the authorities of this island. He declares the 
charges to be false ; that he has never, in a»y manner, said or done 
anything against the government here. He also informed her that the 
only paper found in his possession, any way criminating him, was a 
copy of a letter written by him to a friend in New Orleans, at the time 
that the "Faro" newspaper was purchased by John S. Thrasher, which 
letter, among other things, expressed his satisfaction and pleasure that 
there was an American at the head of that paper. He was employed 
in his trade at the "Faro" office. Mrs. Raices also told me that her 
husband had assured her that he was a naturalized citizen of the United 
States, and had produced his certificate of citizenship at this office some 
months since, of which certificate a note has been taken at this office. 
On referring to the general record-book, I find the following entry: — 
"May 30, 1853, Pedro Raices, a native of the island of Cuba, this day 
appeared at the office of the consulate of the United States, and pro- 
duced a certificate of American citizenship, by naturalization, in his 
favor, issued out of the fourth district court of New Orleans, on the 26th 
day of October, 1852, signed and sealed by Thomas Gilmore, clerk of 
said court, whose signature is duly authenticated by Mortimore M. Rey- 
nolds, judge of the court aforesaid, on the date before mentioned." This 
clearly shows that Raices is a citizen of the United States. Mrs. Rai- 
ces tells me that she has been informed that the Captain General is 
enraged against her husband, and has said that he will have him se- 
verely punished. Both she and her husband have likewise been assured 



CASE OF THE BLACK WARRIOR, ETC 143 

that the best result that he can expect will be his being sent to Spain, 
which would be a great misfortune, for he is a poor man, having, 
besides his wife and four children, and another soon to come into the 
world, his aged mother — all entirely dependent on his labor for support. 

Although I fear that the Captain General will not give heed to any 
remonstrances I may make in favor of Raices, on the plea that consuls, 
and especially myself, who have no exequator, are mere commercial 
agents, having no right to intermeddle in such affairs, I will still, feel- 
ing, as I do, great interest in the fate of the unfortunate man and his 
family, who will be left entirely destitute, address his excellency on the 
subject, and exert myself (as long as I have charge of this office) as 
much as possible to obtain his release. 

I beg to renew the request made in my communication before men- 
tioned, for specific instructions in relation to this case, that may serve 
as a guide for other cases of the like nature that may occur in future. 

I have the honor to be, sir, with great respect, your most obedient 
servant, 

WM. H. ROBERTSON, 

Acting Consul. 

Hon. William L. Marcy, 

Secretary of State of the United States. 



Mr. Robertson to Mr. Marcy. 

[No. 15.] Consulate of the United States, Havana, 

January 11, 1854. 

Sir : I beg leave to lay before you a copy of my communication to 
his excellency the Governor General, dated 7th instant, on behalf of 
Pedro Raices, of whom I treated in my dispatch No. 76, (old series.) 
I likewise enclose you a translation of the General's reply, through his 
political secretary, which reply supercedes all interference, on my part, 
for the relief of the prisoner ; and yet his right to American citizenship 
is recorded in this consulate since the 30th of May last. This will 
clearly show how insufficient the consulate is to give protection to 
American citizens. So much has been said on this subject by every 
one that has been consul here, as appears by the records, that any com- 
ments from me seem unnecessary. I send you simply the facts of the 
case. 

I received, last evening, from the Captain General, Mr. Clayton's 
exequator, as consul for Havana. It is in the usual form. 
I have the honor to be, &c, 

WM. H. ROBERTSON, 

Acting Consul. 



Consulate of the United States, Havana, 

January 7, 1854. 

Most Excellent Sir : I was this morning called to the military 
hospital by a Mr. Pedro Raices, who was born in this island, but be- 



144 CASE OF THE BLACK WARRIOR, ETC. 

came some time since a citizen of the United States. This fact ap* 
pears in the records of this consulate, where an entry is found to the 
effect that he had, on the 30th day of May last, produced in this office 
a certificate of American citizenship, issued in his favor by the fourth 
district court of New Orleans, on the 25th of October, 1852. 

He states that he was taken up on suspicion of doing something 
wrong against the government of this island — he knows not what — and 
that his papers have all been taken from him, even to his certificate of 
American citizenship. He assures me that he is entirely innocent of 
any culpability ; that he has been confined in the Moro, in a dungeon, 
for a length of time, a great part of it incommunicated, and the rest, 
though allowed to be visited by his family, subjected to continual insult 
and abuse, until he became very ill, when he was transferred to the 
military hospital. 

I am informed that Mr. Raices has a wife and several children, and 
that his wife is on the eve of confinement ; and besides that, he has 
also his aged mother dependent upon him. 

I beg leave to call your excellency's attention to this case. If the 
prisoner has been guilty of an intentional infringement or disregard of 
the laws of the country, he has made himself liable to the consequences 
of his acts ; but, at the same time, I must observe, without any in* 
tention of going beyond what is conceded to the office I fill, that the 
government of the United States expects of me to see that the accused 
is fairly tried by a proper tribunal, and allowed all the facilities he may 
require for his defence, in conformity to the treaty existing between the 
United States of America and her Catholic Majesty ; but if, on the con- 
trary, the accused is innocent, that he be not subjected to unnecessary 
delays and inconveniences, but set at liberty. This is the more requi- 
site in the present case, where a numerous family, destitute of resources, 
is entirely dependent on the accused for support. As Mr. Raices is 
undoubtedly an American citizen, it becomes my duty to report the 
facts to my government, and for this reason I would request your excel- 
lency to be so good as to inform me of the cause of imprisonment of 
Mr. Pedro Raices, and the state of his case. I would also desire to be 
informed if Mr. Raices will be allowed all facilities for his defence in 
case that it is deemed proper to bring him to trial. 

Feeling confident in your excellency's desire to see that speedy 
justice is done in the present case, 

I have the honor to remain your excellency's very obedient servant, 

WM. H. ROBERTSON, 
Vice Commercial Agent, in charge of the Consulate. 

His Excellency the Marquis de la Pazuda, 

Governor, Captain General, fyc, &fc, 8fc, of the Island of Cuba. 



Havana, January 10, 1854. 

Dear Sir: His excellency the Governor and Captain General has 

charged me to say to you, as I do, that he has received your official 

letter of the 7th of this month, relative to Mr. Pedro Raices ; but that, 

as his excellency cannot enter into communications with that consulate 



CASE OF THE BLACK WARRIOR, ETC. 145 

upon these affairs, as he is so ordered, he gives all necessary informa- 
tion, in regard to this particular, to the minister of Spain in Wash- 
ington. 

On complying with his excellency's command, I repeat myself your 
attentive and true servant, that kisses your hand. 

JOSE ESTEVAN, 
Government Secretary. 
The Commercial Agent 

in charge of the Consulate of the United States. 



Mr. Marcy to Mr. Robertson. 

Department of State, 

Washington, February 9, 1854. 

Sir : I will thank you to inform the department, by the earliest op- 
portunity, if the case of Pedro Raices, to which you have repeatedly 
adverted in your dispatches, has been decided. 

You will transmit any further information that you may be able to 
obtain respecting it, so that the department may be prepared to act 
with a full knowledge of all the facts. 

Your dispatches Nos. 21 and 22 have been received. 

I am, sir, &c, 

W. L. MARCY. 
W. H. Robertson, Esq., 

Acting U. S. Consul, Havana. 



Mr. Robertson to Mr. Marcy. 

[Extract.] 

[No. 29.] Consulate of the United States, Havana, 

February 20, 1854. 

^kTT> • *?P * Tr •$ * ?F "3F M? 

In answer to the last, relative to the case of Pedro Raices, I have to 
inform you that his wife came to see me last week, and told me that 
the " fiscal " (prosecuting officer) had demanded against him " banish- 
ment to some interior place in Spain for three years," and that the mil- 
itary court were to render their decision on Saturday. Mrs. Raices 
has seen me again to-day, and notified me that her husband's case was 
brought before the court on that day, but she has not yet been able to 
ascertain what the decision has been ; that she is trying to find out the 
result, and will, when she does learn it, without delay make the same 
known to me. 

In my dispatch No. 15, (receipt of which you acknowledged on the 
24th ultimo,) I enclosed a copy of my communication to the Captain 
General in behalf of Raices, and also a copy of the political secretary's 
letter in reply thereto, wherein he informed me that he had been in- 
structed by the Captain General to acknowledge the receipt of my 



146 CASE OF THE BLACK WARRIOR, ETC 

letter, and to tell me that, as his excellency could not correspond with 
this consulate on such subjects, as he had orders to that effect, all 
necessary information had been transmitted to the Spanish minister at 
Washington. I do not perceive that I can, after receiving such a per- 
emptory answer, say anything further to the Captain General on the 
subject. 

Should I be able to obtain more information of this case before the 
departure of the steamer Isabel, that conveys this to Charleston, I will 
avail myself of the opportunity to transmit it. 
I have the honor to be, &c, 

WM. H. ROBERTSON, 

Acting Consul* 



Mr. Robertson to Mr. Marcy. 

[Extract.] 

[No. 36.] Consulate of the United States, Havana, 

March 5, 1854. 

Sir: The wife of Pedro Raices came to see me yesterday, and re- 
ported that she has been informed that the military court which tried 
her husband's case did not grant the petition of the prosecuting officer, 
which was " banishment for three years to Spain," but condemned him 
to the chain-gang. The case has been referred to the superior court, 
(audiencia,) and Mrs. Raices has been assured that the chief justice 
has disapproved of the sentence, as many who were more culpable 
than he had been condemned to lesser punishment ; and that he (the 
chief justice) is of opinion that a few months' imprisonment is a suffi- 
cient penalty. 

I suppose the Spanish minister in Washington will, in conformity 
with what the Captain General wrote me, be placed in possession of 
all information on this subject, and will not hesitate to lay the same be- 
fore 3 T ou. 

A Cuban named Isidore Richoux, a naturalized citizen of the United 
States, who has presented to me a passport signed by you, received, 
day before yesterday, an order from the Captain General to leave the 
island immediately. The officer that communicated to him the order 
made him understand that he was directed to conduct him (Richoux) 
to prison, if he asked for more than five days to effect his departure. 

I have the honor to be, sir, with very great respect, your obedient 
servant, 

WM. H. ROBERTSON, Acting Consul 
Hon. Wm. L. Marcy, 

Secretary of State of the United States, Washington. 



"CASE OF THE BLACK WARRIOR, ETC. 147 

Mr. Marcy to Mr. Magallon. 

Department of State, 

Washington, March 15, 1854. 

Sir : I beg leave to call your attention to the accompanying extract 
of a dispatch from the acting consul of the United States at Havana, 
dated the 5th instant, and to request that you will do me the favor to 
communicate to this department the information referred to therein. 

I avail myself of this occasion, sir, to offer you a renewed assurance 
of my high consideration. 

W. L. MARCY. 

Don Jose Maria Magallon, 8fc, §c, fyc. 



Mr. Magallon to Mr. Marcy. 

[Translation.] 

Legation of Spain in Washington, 

March 18, 1854. 

The undersigned, charge d'affaires of Spain, has the honor to inform 
the honorable Secretary of State of the United States, that he has read 
the extract of the communication which the acting consul of the United 
-States at Havana addressed to the Department of State, under date 
•of the 5th instant, relative to the judgment pronounced in the suit which 
had been brought againt Pedro Raices. 

In conformity with the wishes expressed by the honorable William 
L. Marcy, in his note of the 15th instant, the undersigned proceeds to 
state, that the notices which have reached his knowledge on the sub- 
ject only come down to the 10th of January last, at which time Raices 
was subject to the process which had been instituted by the permanent 
military commission of that island, against several individuals, for hav- 
ing instituted and distributed about the streets of Havana, and forwarded 
-to other parts of the island by mail, certain productions and other 
seditious documents. 

The arrest of this individual, who, although born in Havana, alleges 
to have been naturalized a citizen of the United States in 1852, no 
doubt induced Mr. W. H. Robertson, consul ad interim of this country 
in that city, to write to the Captain General on the 7th of last January, 
in behalf of Raices. This communication was answered by the au- 
thority last mentioned on the 10th of the same month, through the 
medium of the political secretary, stating that he had furnished this 
legation with all the necessary information on the subject. This in- 
formation referred then to the seizure of various suspicious papers in 
possession of Raices, together with a portion of printing materials, a 
gun, and a sabre ; there being among the former a writing in English, 
which Raices sought to destroy by snatching it from the hands of the 
police officer. Mr. Robertson must have referred to this communica- 
tion of the Captain General, in his aforesaid dispatch of the 5th instant. 

The undersigned has received no official dates since, but he does 



148 CASE OF THE BLACK WARRIOR, ETC 

not hesitate to assure the honorable Secretary of State of the United 
States, that while he does not believe that the president of the court of 
judicature (regente de la audiencia) had given his private opinion be- 
fore trying the case in court, he is firmly persuaded that his decision 
will be in conformity with strict justice. 

The undersigned avails himself of this opportunity to renew to the 
honorable William L. Marcy the assurances of his high consideration. 

JOSE MA. MAGALLON. 

Hon. Wm. L. Marcy, 

Secretary of State of the United States. 



Mr. Robertson to Mr. Marcy. 

[Extract.] 

[No. 45.] Consulate of the United States, Havana, 

March 21, 1854. 

Sir :******* 
The case of Pedro Raices has been brought to a termination : he has 
been sentenced to banishment for one year in the Isle of Pines, as his 
wife has just informed me ; the Captain General has not yet approved 
or disapproved. Should the former be the case, as the Isle of Pines is an 
out of the way place, where no employment may be procured for a 
man of weak constitution like Raices, his numerous and indigent family 
will, unless something is promptly done in his behalf, suffer severely ; 
and the said isle being the place where vagrants and confirmed drunk- 
ards are sent, the consignment of Raices to it appears to me to be 
intended to ruin his character and good reputation. 

I have the honor to be, &c, 

WM. H. ROBERTSON, 

Acting Consul. 



CASE OF CHARLES PETER V. ESNARD. 

Mr. Campbell to Mr. Clayton. 

Consulate of the United States, Havana, 

February 1, 1850. 

Sir : I have the honor to enclose herewith a copy of a short corre- 
spondence with the Captain General, and of an affidavit of Mr. Esnard, 
whose arrest and imprisonment gave rise to the correspondence. 

You will observe that my letter to the Captain General is a cour- 
teously expressed request to be informed of "the cause of arrest, and 
confinement in the royal prison, of the American citizen, C. P. V. Es- 
nard." To this civil, proper, and in my opinion necessary request, I 
am informed by his excellency that Mr. Esnard is imprisoned, but the 



CASE OF THE BLACK WARRIOR, ETC 149 

cause is not given ; and his excellency concludes the letter by saying, 
"it being an affair of the government, it belongs exclusively to me." 
This letter of the Captain General appears to assume the principle 
that when an American citizen is arrested, with or without cause, by 
the Spanish authorities, neither the government of the United States 
nor its agents can claim to be informed of the circumstances which 
induce arrest and imprisonment. 

My feelings and opinions prompted an immediate reply, contesting 
this position ; but they yielded to a sense of duty which required me to 
obey instructions contained in your official communication of the 26th 
day of May, 1849, in which, while alluding to difficulties which I then 
thought might be impending over Americans in Cuba, you say : " Should 
the difficulties you seem to apprehend arise, you will immediately re- 
port the occurrence to the department, which will receive prompt at- 
tention." In obedience to which instructions, this communication is 
now made. 

In Mr. Esnard's case it appears somewhat strange that the officer at 
the prison should, in the first instance, have denied to me having such 
a prisoner in custody; and it is equally strange that Mr. Esnard under- 
went no examination in Havana, although he had been informed by the 
governor of Alacranes, "that the Captain General wished to get informa- 
tion from him in relation to certain persons." Had the arrest been made 
solely to collect the fine of twenty-five dollars, the fine could have been 
collected where Mr. Esnard had funds and friends, and he would there- 
by have escaped the painful incarceration of more than nine days. 

To secure Mr. Esnard from the despondence and alarm so apt to 
overwhelm the firmest when incarcerated in a Spanish dungeon, I had 
him repeatedly visited in prison. 

I have the honor to be, &c, 

ROBERT B. CAMPBELL. 

Hon. John M. Clayton, 

Secretary of State, Wash'mgton City. 



Consulate of the United States, Havana, 

January 24, 1850. 

Sir: At four o'clock yesterday afternoon I was called on by a lady, 
reporting herself as the wife of C. P. V. Esnard, an American citizen, 
who, she stated, had taken out a carte of domiciliation on the 29th of 
October last, had been arrested the day before at Nueva Paz, by 
order of the government, and brought to this city for imprisonment. 
The lady represents herself as knowing nothing of the cause of arrest, 
but states that her husband directed her to inform me, as the consul of 
his country, that he had been arrested, accompanied with a request 
that I would call at the royal prison to see him. 

In conformity to that request I called at* the prison, inquired for the 
alcalde, and was shown a person who I presume held that office; from 
him I learned that no such person was in prison. 

About 6 p. m. I was informed, by the individual who I supposed to 
be the alcalde of the royal prison, that he had been mistaken in telling 



150 CASE OF THE BLACK WARRIOR, ETC; 

me that Mr. Esnard was not in confinement, as, upon examination, he 
discovered that he had arrived about 12 m., and that I could see him. 

This morning I sent my clerk to the prison, who saw the prisoner in 
the galera de Santa Rosa, and learned from him that he was entirely 
ignorant of having committed any offence upon this island, or of the 
cause of his arrest. The alcalde, however, informed my clerk that the 
prisoner had been sent by the governor of Alacranes to be placed at the 
disposition of your excellency. 

Failing in my efforts to obtain any definite knowledge of Mr. Esnard's 
offence, your excellency will excuse my asking of you the cause of 
arrest and confinement in the royal prison of the American citizen, C. 
P. V. Esnard. 

An early reply to this communication will confer a favor. 

I have the honor to be, with considerations of great respect, your 
excellency's most obedient servant, 

ROBERT B. CAMPBELL. 

His Excellency the Governor and Captain General 

of the Island of Cuba, fyc, fyc, Sfc. 



[Translation. 



Political Secretary's Office. 

The individual C. P. V. Esnard is, in fact, detained as subject to a 
judicial investigation, and I communicate to your lordship, for your in- 
formation, although being an affair of the government, it belongs ex- 
clusively to me. 

God preserve your lordship many years. Havana, 26th January* 
1850. 

EL CONDE DE ALCOY. 

To the Consul of the United States. 



Consulate of the United States, Havana, 

January 31, 1850. 

Personally appeared C. P. V. Esnard, who declared that he was ar- 
rested on the 22d day of January, 1850, at his house in Vegas, depart- 
ment of Alacranes, and taken to the city of Nueva Paz, in presence of 
the lieutenant governor, by whom he was questioned : " Where he had 
resided during his stay on the island in July last?" He answered, 
" Upon his father's property." "What persons he had visited while 
there?" He answered, "Dr. Francisco Gonzalez, and no other." 
" When did he leave the island ? " Answer, " The latter end of July." 
" Who had given him passport ? " "Nobody." "What port had he 
sailed from ? " " Havana, and that he had left without a passport, with 
the intention of returning to Havana with his family, which he did in 
October last; that upon his arrival at Havana he made application for 
a carte of domiciliation, which was given to him a few days afterwards ; 
that the agent who got out the carte for him told him that his name 



CASE OF THE BLACK WARRIOR, ETC 151 

was on a list, which he doubts not has been the cause of his (Esnard's) 
arrest ; that the governor of Alacranes, at the time of the arrest, told 
him that the Captain General wished to get information from him in 
relation to certain persons, although no names were mentioned ; that 
on the 23d instant he was sent, accompanied by the captain of the par- 
ish of Nueva Paz, to the prison of Havana, to be kept there at the dis- 
position of the Captain General; that during his stay in the prison, 
which was to this date, in the department called Santa Rosa, with tke 
thieves and cutthroats of the whole island, he was not questioned at all ; 
that on the 31st January he was called by the jailor and taken in the 
presence of a respectable gentleman, who informed him that he would 
be set at liberty upon paying a fine of twenty-five dollars, and that if 
ever he made himself liable to suspicion he would be expelled from the 
island ; that he answered that he had no money, as his wife had gone 
out to the country, but the gentleman told him that he could take his 
time for paying the money, and that the American consul having lent 
him the money he went and paid it ; but what the fine was for he is 
entirely ignorant, except what is to be seen on the face of the receipt 
given for the money, viz : for having left the island without a passport. 

CHARLES PETER V. ESNARD. 

Sworn to before me, on the day of the date written on the first page. 

ROBERT B. CAMPBELL. 



CASE OF JOHN SALINERO. 
Mr. Morland to Mr. Webster. 

Consulate of the United States, Havana, 

April 7, 1851. 

Sir : I have the honor to enclose to you herewith a translated copy 
of a communication which I sent to the Captain General, and of his 
excellency's reply thereto, in consequence of an American citizen having 
been taken up and imprisoned in a dungeon without being allowed any 
communication. 

I beg leave to draw your attention to the Captain General's answer 
to my application, by which you will see that he does not allow consuls 
to interfere in such cases, stating (which is true) that their exequatur 
from Spain only allows them to exercise the functions of commercial 
agents. This has been stated before to General Campbell; and unless 
the government of Spain permits consuls to protect American citizens 
so far as to give them an open and fair trial, it may be very oppressive, 
and grow worse and worse. In the present case the Captain General 
did put the individuals in communication. 

The United States steamship Saranac, with Commodore Parker on 
board, arrived here on the 19th ultimo, and sailed for Pensacola on the 
3d instant. 

Everything is quiet here; but there are reports, credited by the Cap- 
tain Genera], that there are some eight or nine hundred men, embarking 



152 CASE OF THE BLACK WARRIOR, ETC. 

from Florida to invade this island. It is understood, however, that 
they sail unarmed, and for Yucatan first. 

I have the honor to be, sir, with great respect, your obedient servant, 

JOHN MORLAND, 

Acting Consul. 
Hon. Daniel Webster, 

Secretary of State, Washington City. 



[Translation.] 

Consulate of the United States, Havana, 

March 27, 1851. 
Most Excellent Sir : I have just been informed by the friends 
and relatives of Mr. John Salinero, a citizen of the United States and 
a resident of New York, where I understand he has a wife and family, 
that he has been arrested, on the 25th instant, by order of your excel- 
lency's government, and put in prison, in a state of incommunication, 
without his friends having any knowledge of the cause of his arrest. 
I therefore request, respectfully, of your excellency, to have the good- 
ness to state to me the cause of the arrest of that individual, so as to 
have the opportunity of offering some explanations, or of making his 
defence, if he is accused of having committed any crime. 

With the greatest respect, I have the honor to be, your excellency's 
very obedient servant, 

JOHN MORLAND, 

Acting Consul. 
His Excellency Senor D. Jose de la Concha, 

Governor and Captain General of the Island of Cuba. 



[Translation.] 

Office of the Political Secretary, Havana. 

April 3, 1851. 

Mr. John Salinero, of whom you treat in your communication of the 
27th ultimo, is, in fact, imprisoned in this city, and subject to the court 
of the alcalde mayor, Senor Don Justo Sandoval, before whom pro- 
ceedings are carried on against him, as he appears as an accomplice 
in a crime of falsehood. This being a mere affair of justice, to the 
courts of the territory that exercise it in her Majesty's name belong the 
prosecution and decision of the cause of the citizen to whom you refer, 
whose defence, by any means that he may think himself entitled to 
use, will be heard when the opportunity arrives. For this reason, I 
must remind you that the powers committed to foreign consuls in this 
island do not extend to their interfering in affairs of this nature, the 
regium exequatur annexed to the certificate of their appointment pre- 
scribing to them the merely commercial limits to which they must 
confine themselves in their powers. 

God preserve you many years. 

JOSE DE LA CONCHA. 

To the Commercial Agent of the United Slates. 



CASE OP THE BLACK WARRIOR, ETC 153 

CASE OF CAPTAIN LARRABEE, &c. 
Mr. Trist to Mr. Forsyth. 

[Extract.] 

Washington, September 29, 1853. 

Sir : Among other subjects, in regard to which, owing to the con- 
stant employment which my duties gave me, it proved absolutely 
impossible to find time for making the necessary communications to 
the department previously to my departure from Havana in August 
last, and the materials concerning which I therefore brought with me 
for that purpose, is the case of the master and two men of the brig 
Franklin, of Portland, to which the enclosed papers relate, and which 
would have been reported at an earlier day had I uot been compelled 
to postpone doing so by the loss of time occasioned since my arrival in 
the United States by repeated indisposition, and by the exercise de- 
manded by extreme debility from which I have suffered, whereby I 
have barely been enabled to give to my private affairs the attention 
they required. 

The circumstances which led to my letter to the Captain General of 
Cuba, under date of May 28, 1835, (a copy whereof, A, is enclosed,) 
being therein detailed, it is needless to swell this communication by 
their repetition. 

From the enclosed reply (B) of his excellency, under date May 29, 
it will be seen that my letter was referred to the Auditor of War, the 
officer to whom the cognizance of the subject, under the general power 
of supervision and correction vested in the Captain General as supreme 
judge, regularly belonged ; and the course which the matter look ap- 
pears in detail in the accompanying copy (C) of the " expediente" or 
paper book, made up of all the "diligencias" or proceedings which was 
communicated to me by the Captain General, with his letter of July 
20th (D) herein enclosed. 

I will state such particulars as may be necessary, to spare the trouble 
of reading the expediente, and afford a right understanding of the case. 

Agreeably to the ordinary mode of proceeding of Spanish judicial 
functionaries, an accident of the kind which befel Captain Larrabee|is 
always sufficient to seal the ruin of any man, unless he be protected 
by circumstances altogether foreign to the merits of his case. The first 
step is to throw every person, who can, by any pretext, be implicated 
in the matter, into a dungeon ; from which he can hope for release only 
when it shall suit the will and pleasure of the interminable series of 
auditors, fiscals, assessors, notaries, &c, &c, whose action may be 
requisite in the case, to reach that stage in the proceedings at which an 
order can issue for his liberation. If he be altogether destitute of both 
money and friends, there is no motive for alacrity in disposing of his case, 
and it drags on most heavily, or lies neglected, and perhaps entirely for- 
gotten. If he have, or be suspected of having, either money, or friends 
able to use it in his behalf, motives are not wanting to put his resources 
and their feelings to the strongest test ; and nothing can be more easy, 



154 CASE OF THE BLACK WARRIOR, ETC. 

under a system where no officer engaged in the administration of the 
laws is ever expected to do any act as a matter of duty, and where the 
only responsibility or accountability attached to any office is to a court, 
at which nothing can be effected except by empcnas or money, and 
where there is nothing which may not be effected by their means. 

In the present instance, everything was done in behalf of Captain 
Larrabee which could be accomplished by the joint influence of my 
official interference, addressed to the Captain General, (who is an honest 
man, and perhaps the only one holding office in the island, and the fear 
of whom does, to a greater or less degree, influence the conduct of them 
all) and the private exertions of Mr. George Knight, of the house of 
Mariatigue, Knight & Co., the consignees of the vessel; who, having 
long and extensive experience in all sorts of transactions with these 
gentry, took, in the most skilful way, every step that could be taken 
to hasten the case to a close. Nevertheless, although it was notorious 
to all, and acknowledged in the Captain General's answer to my first 
letter, that the death of the Spanish cooper was entirely " casual" 
Captain Larabee was, in the regular course of proceeding required by 
law, immediately brought to Havana at a time when the yellow fever 
was raging furiously, and thrown into a horrid dungeon, in the com- 
pany of wretches of all shades of skin and crime, where, I am satisfied, 
a confinement of a few hours would have certainly caused my death, 
and whence it proved impracticable to obtain his release, even provis- 
ionally and under bond, until he had lain there a fortnight. As a great 
favor, granted at their peril and in violation of the law, by the mili- 
tary officers (whose general character is, from obvious causes, very 
different from that of the civil) of the guard, he was allowed, for some 
days previous to his release, to emerge from his dungeon for a few 
hours, to recover from the effects of its pestilential atmosphere. 

I could not with any propriety interfere any further than I did, nor 
even know anything of the proceedings, until the result should be 
officially communicated by the Captain General. But I was kept 
privately apprized of them by Mr. Knight, as fast as he obtained any 
intelligence on the subject, and in that way I learned that, in pursuance 
of the " dictamen," or semijudicial opinion of the fiscal of the Auditor 
of War, (every officer, judicial or executive, has one or more of these 
fiscals or assessors, whose province it is to half judge or decide what his 
judgment or decision is to be) the case of Captain Larrabee and his 
imprisonment was to be protracted by sending the proceeding back to 
Bahia Honda, where they had begun, for new investigations, in regard 
not only to the occurrences which involved the death of the Spanish 
cooper, but also to the previous ill-treatment of the crew of the brig Frank- 
lin, which had, in the course of the investigation, been alleged by the mutineers 
against the captain. A point more utterly foreign to the death of the 
Spaniard, the only ground of the whole proceeding, and the only assign- 
able pretext for the imprisonment of Captain Larrabee, could not be 
conceived, and the real object of this manoeuvre to find a new subject 
for proceedings and extortion was but too evident. In this point of view, 
however, it could not be noticed by me, even if I could have avowed 
any knowledge of it. But, considering that, agreeably to every prin- 
ciple of international law, the cognizance of all questions between the 



CASE OP THE BLACK WARRIOR, ETC 



155 



masters and crews of our vessels, retrospectively founded upon alleged 
breaches of the shipping contract as to services required and food fur- 
nished, and having damages in view, properly belonged to the author- 
ities of the United States ; and convinced, if the right of those of Cuba 
to interfere in such matters were once generally established, there 
would be no end to the vexatious proceedings to which our ship-masters 
would become subject in every port of the island, as a mode of extorting 
money from them, my first impulse was, to address to the Captain 
General a remonstrance against any such pretension. The only dif- 
ficulty was, that such a step would imply a knowledge that it had been 
advanced. This, however, I got over by founding my letter on the 
generally known facts, that the complaint of hard usage had been made, 
and that the proceedings had gone back to Bahia Honda, and the gen- 
eral presumption that such was the object. It was written and trans- 
lated, but on further reflection I determined not to send it. 

In the first place, by the terms of my exequator, (and all granted 
by the court of Spain are precisely alike,) which would be appealed, to 
as the rule of their government, my right of interference in controversies 
between masters and seamen is expressly limited to the exercise of my 
"arbitrio" which, in one of its senses, and probably the sense in which 
it is intended by the Spanish government, (whose treaties and laws show 
the utmost jealously and circumspection on this point,) means my arbi- 
tration, and implies the previous voluntary submission of the parties 
thereto. On the other hand, the practices which have imperceptibly 
grown up at Havana, in relation to consuls, are very liberal, and leave 
foreign seamen at the absolute disposal of their consul, so that he is 
enabled to exercise a powerful control over their conduct in all respects ; 
and where he cannot himself decide on their complaints, he may put 
them under the necessity of waiting until they can be brought before a 
court in the United States. For instance, as happens there among our 
shipping every week, and sometimes every day in a week, a seaman 
or two, or a whole crew, with or without cause, get the devil into them, 
refuse to do work, and come to the consul to demand payment of 
wages, damages, and their discharge. He examines into the case, and 
finds that, although they may, by our laws, be entitled to damages for 
the usage they have received, (which is but too frequently the case,) they 
are not entitled to their discharge. He tells them so, and that they 
must wait to be righted by a jury in their own country, and he requires 
them to return to duty. If they prove unmanageable, he gives to the 
master an order (in its terms a request) to the captain of the port for 
their arrest and confinement until the vessel be ready for sea, or they 
see fit to return to their duty, which they generally do very quickly. 
Except under circumstances which do not allow it to be waited for, a 
seaman is never arrested without this order from his consul, and, being 
founded on the fact of mutinous conduct, it is considered as bringing 
him under his exclusive custody. This mode of proceeding, together 
with the difficulty of communication with lawyers and magistrates, 
arising from the difference of language, proves a practical protection 
against our seamen having recourse to litigation there, which would 
never be attended with any other result than to strip them of any loose 
cash they might have or be entitled to, and subject the masters to ex- 



156 CASE OF THE BLACK WARRIOR, ETC 

tortion for the exclusive benefit of the judges, &c., for recourse would 
necessarily be had in every case, by the master or his consignee, to the 
only argument in which they can perceive any force, or by which a 
cause can be made to move ; and the seamen would invariably be 
found, prima facie, in the right, but, on full investigation, in the wrong. 
The established custom being such as I have stated, I thought it dan- 
gerous to raise, in this case, a general question; the agitation of which, 
by awakening attention to a power so calculated to subserve their 
notorious rapacity as that of receiving complaints of seamen against 
their captains, might lead to general results of a permanent character, 
the most injurious to the interests of our shipping. 

In the next place, I knew that, at the very quickest step known in 
the tactics of Spanish law officers, even with the fear of Tacon in 
their hearts, the various reports on which the official determination of 
such a question must depend, would, on the most favorable calculation, 
require from three to twelve months in their production ; and that it 
would, to a certainty, be mixed up with the case of Captain Larrabee, 
so as to expose him to all the evils of such a delay. 

Governed by these considerations, I confined myself to a simple 
demand made in my letter (E) of June 15, 1835, of the two seamen in 
question, as offenders against the laws of the United States, whom it 
was my duty to send home for trial. This demand did not require 
any reference to the inquiry which had been ordered with regard to 
the treatment of the crew by Captain Larrabee; and I entertained a 
hope that an order might forthwith issue from the Captain General, 
putting them at my immediate disposal, in which case I proposed to 
send them off by the first merchant vessel; and, by thus removing the 
chief if not the only complaints, to cut short a proceeding which might 
last, there was no conjecturing how long, and subject Captain Larra- 
bee to new sufferings, and his owners to ruinous expenses and delays. 
This hope, however, was not realized. My letter was referred to the 
Auditor of War, whose fiscal, as appears from the expediente, decided, 
on the 2d of July, that he reserved his opinion upon it until the inquiry 
above referred to should be brought to a close. 

To return to the circumstances immediately connected with the 
imprisonment of Captain Larrabee : The first decision of the auditor's 
fiscal, as was at the time privately learned, required that before any 
opinion on the merits of his case could be given, the widow of the de- 
ceased must make a notarial declaration, whether she renounced or 
adhered to her personal actions against Captain Larrabee, which com- 
prised an action for a maintenance for herself and children. This 
renunciation being a sine qua non to his release from his dungeon, 
every hour's confinement in which endangered his life, it had to be 
bought ; and the captain being very poor, and altogether unable to sup- 
ply the means, the necessary sum had to be raised by subscription. 

Fortunately, the widow proved to have some conscience, and made 
the renunciation at once, on receiving the assurance that something 
better than what could be wrung out of the prisoner's substance would 
be raised for her. Mr. Knight authorized me to subscribe six ounces 
($102) for his house, as I did for myself, and the list thus cammenced 
was carried to between one and two thousand dollars ; not, however, 



CASE OF THE BLACK WARRIOR, ETC 157 

without the necessity of a resort to other consuls and foreigners, that 
took place without my knowledge, and in violation of the heading of 
the list, and of my letter accompanying it, which were addressed, 
and confined the subscription, exclusively to American ship-masters 
and other citizens. As was very natural, the incarceration of Captain 
Larrabee caused a high excitement among the masters of our vessels, 
of whom there were upwards of ninety then in port, and, as was also 
not to be wondered at, from the ignorance and unreasonableness of the 
greater portion, this excitement was, in the minds of many, directed 
against me, for not procuring, by a wave of my consular sceptre, the 
instant liberation of this American citizen. 

The renunciation of the widow being obtained, and his consignees 
having given bonds for his appearance, Captain Larrabee was released 
from prison and permitted to go to Bahia Honda, whence, on com- 
pleting the lading of his brig, he returned in her early in July. There 
being no assignable pretext for any further suspension of his case, he 
had every right to expect his immediate discharge, so as to enable him 
to put to sea as soon as his vessel should be cleared, which was but 
the work of a few hours. His disappointment in this just expectation 
caused me, after waiting several days in the hope that the necessity 
for my further interference would be obviated, to address to the Cap- 
tain General my third letter, of July 9, (F,) which also was referred by 
his excellency to the Auditor of War, the decision of whose fiscal, ap- 
proved by himself, was at length brought forth, under date of 15th 
July, and was instantly acted upon, in the final instance, by the Cap- 
tain General. 

In this decision, besides an acknowledgment that the death of the 
Spaniard was purely accidental, the allegation of ill-treatment of the 
crew is stated to have been entirely disproved ; and the latter circum- 
stance is made a distinct ground of the captain's acquittal and escape 
without any penalty or punishment, thereby implying their right to prose- 
cute an American ship-master criminally, on the allegation of having 
required too much work of his crew, and given them bad fare. 

It then proceeds (after a reservation of the principle that it belongs 
to the local authority of every country to punish those who offend 
against its laws, and that therefore the offences of the crew of the brig 
Franklin may and ought to be judged by " this superior government,") 
to consent that, without prejudice to his jurisdiction, and in the spirit 
of cultivating the harmony, &c., with the United States, the seamen 
may be delivered up to the consul, &c. This parade of the right to 
judge the local offences of the crew, which had never been called in 
question, and when the prosecution of Captain Larrabee had been the 
sole object of their whole proceeding, which was the only one they 
cared about or even contemplated, is a fair sample of the way in which 
these people always bring forward some common-place, as a means 
of shuffling out of view the real points of the case. The British con- 
sul has repeatedly told me that in his discussions with them he al- 
ways receives some prolix compound of irrelevancies, in which the 
point in question is not so much as approached. And this is ascribable 
not only to their rooted habit of ill-faith in all transactions, but also to 



158 CASE OF THE BLACK WARRIOR, ETC. 

their indolence and ignorance, whence results an absolute incapacity to 
do justice to a subject, even when they may chance to be so disposed. 

The decision winds up with strictures upon my interference, to this 
effect: first, the "tribunal" (that is to say, the auditor and his fiscals, 
in secret conclave in his bed-chamber, or bed, perhaps.) had never 
decreed the detention of the vessel ; and if this resulted from that of the 
persons proceeded against, it afforded no ground for my reclamation, 
inasmuch as those persons might have been replaced by others ; sec* 
ondly, the case having been conducted in the course established by the 
laws, there has been no delay in bringing it to a conclusion ; and thirdly, 
that it is highly desirable that, confining itself to its functions of repre- 
senting the individual interest of the subjects of its government on proper 
occasions, the consulate should not overstep the limits defined by the 
laws and reciprocal treaties, and should thus leave the authorities in 
the free exercise of their attributes. 

The reason assigned under the first of these heads is specious ; but, 
in such a case as this, it was, as they well knew, 'practically untrue ; 
and the confinement and detention of Captain Larrabee (even inde- 
pendently of the costs of the proceeding, in the way of fees and dou- 
ceurs, the latter of which always constitute by far the heaviest item) 
was unavoidably attended with serious pecuniary loss to all interested 
in the voyage. And knowing well that the most serious if not the only 
real responsibility which a Spanish officer could incur in such a case 
towards his government would be that of subjecting it to claims for 
money, I have never omitted to present every subject of the kind in a 
way calculated to awaken this idea in their minds as strongly as the 
circumstances of the case allowed. 

With regard to the second head they would have said the same thing, 
and with just as much truth, had they made the case last twelve months 
or twelve years. God help the man who once gets the clutches of 
Spanish judges upon him, and has nothing to depend upon but " the 
course established by the laws!" 

The third branch of these strictures manifests the vexation of the 
auditor and his first fiscal * * * * * at my 

interposition ; and it is not to be wondered at, seeing that I can 
at any moment, and without an hour's delay, bring to this Captain 
General's knowledge any fact I see fit to ask his special attention to ; 
whereas, in the course established by the laws, an appeal to him on 
the proceedings in a case, before it be regularly matured, must, of ne- 
cessity, be always a matter of extreme and generally insurmountable 
difficulty. These objections offer an excellent opportunity for address- 
ing a representation to the Captain General on the subject of consular 
powers, as I propose to do on my return, if, on a thorough exami- 
nation of the subject, it should appear advisable to agitate it. Their 
treaty with us stipulates only for the footing of the most favored na- 
tions ; and that with France, which, as they affirm, gives the general 
rule in relation to the powers of consuls, as it does, of course, to those 
of France, reduces them to mere cyphers. And if this proves to be the 
case, as it appeared to be on a close inspection of all the documents 
that I had the opportunity of obtaining any knowledge of, the less that 
is said about the matter the better. But if it prove to be otherwise, as 



CASE OF THE BLACK WARRIOR, ETC 159 

the British consul informed me, just before I left Havana, would appear 
from the last treaty with Great Britain, it will be most important to 
come to such an understanding on the subject as will put the interests 
of our shipping beyond the reach of their villany. 

Although the office of consul will, everywhere, even in the most civ- 
ilized country, conduce to the convenience of commerce, and its security 
against the petty vexations to which, even if they be not brought upon 
them by any other course, mariners will subject themselves through 
ignorance and inadvertence ; yet, in a truly civilized country, the ne- 
cessity for a consul is of very secondary importance. Bat under such 
an atrocious system as that of Spain, which combines all the evils of 
the absence of. all government, where no man is secure; and of the 
total extinction of individual liberty, where no man is allowed to de- 
fend himself— the case is very different. From what I know of the 
rapacity and irresponsibility of its functionaries, I had much rather risk 
my person and property in a tolerably armed merchantman at the an- 
chorage of Quallah Battoo, than that they should be in a port of Cuba, 
unprotected by a consul, and subject to the various casualties which 
might put them at the mercy of the Spanish authorities, proceeding un- 
checked "in the course established by the laws." Even the unlimited 
power of supervision and correction vested in the Captain General, 
although exercised by a man so unique in their service as the present 
Governor, is a totally inadequate protection — it being utterly impracti- 
cable for one man, however vigilant, honest, and severe, to hold in 
check the universal rapacity which constitutes the sole spring of action 
in the whole administrative branch, from the constable to the highest 
judge. Hundreds of cases must occur every day, in relation to which 
he is under the necessity to adopt, without examination, in regard to 
both facts and law, the views of others ; and it is only to those of a 
most flagrant nature that his own examination can be occasionally 
given, even when the difficulties of bringing them to his notice have 
been surmounted. 

The two mutineers of the brig Franklin having, in the way stated, 
been put at my disposal, the only course left me was to pursue that 
with reference to which I had made the demand ; although my chief 
motive in making it, and but for which I. should have scarcely deemed 
it worth while to make it at all, no longer existed. 

I deemed them, under the circumstances of the case, a sufficient 
ground for at least hinging against these men the charge of revolt or 
piracy, and going through the form of sending them home as prisoners, 
rather than that they should be turned loose without any show of pro- 
secution ; which, after all the trouble and excitement to which the case 
had given rise, and the sufferings which their misconduct had brought 
upon their captain, would have had a very bad effect upon our seamen 
in that quarter. 

It is proper to add, in regard to my communications to the 
Captain General, that, except in cases of mere form, they were al- 
ways sent in the Spanish language. Any communication addressed 
to him in any other, is subject to delays arising from its necessary 
reference to some government translator, who always takes his own 



160 CASE OF THE BLACK WARRIOR, ETC 

time about it, and may, if he have any motive, carry the delay to a 
ruinous extent ; and, what is worse, its meaning is ever liable to total 
perversion. I do not know of one of these translators who is capable 
of making a decent version of any paper in the English language ; and 
if they were all ever so capable, there would be no security against 
intentional perversion. My only chance of conveying my real senti- 
ments and views on any subject to the Captain General, or any other 
functionary, was, therefore, to send them in the Spanish language ; my 
acquaintance with which, although very limited, is sufficient to ena- 
ble me to judge if my meaning be exactly rendered. The certainty 
that it would always be wretchedly perverted by one of their official 
translators, besides being known to me from the general character of 
such of their productions as I have seen, was in every instance brought 
forcibly home to me, by the great difficulties encountered in getting a 
faithful version made under my own eye ; although I employed the 
most capable man in that line at Havana, (whom I know the official 
translators have recourse to, in their straits) with the advantage, too, of 
explaining my meaning to him in French, when he did not seize it in 
English. The trouble and time required by every communication 
was thus at least quadrupled. But it was better not to write at all, 
on any subject requiring delicate treatment, (and this was more or less 
the nature of every subject, except mere matters of form, on which I 
had to make a communication,) than to expose my matter and manner 
to the certainty of perversion. This departure from the diplomatic 
rule of making all official communications in the language of the 
writer, being therefore a matter of absolute necessity, to secure the 
object I might have in view, I entertained no doubt of its propriety ; 
only taking the utmost care, as I always did, that my precise meaning, 
and nothing else, was conveyed. 

The perusal of this letter must, from its length, if no other cause, 
prove a very tedious job. But the necessity that I should convey 
some idea of the circumstances in which I was placed, in regard to 
the various aspects of the subject, will, I trust, be deemed a sufficient 
apology for the tiresome details into which I have entered. 

I am, sir, very respectfully, your obedient servant, 

N. P. TRIST. 

Hon. John Forsyth, 

Secretary' of State. 



Consulate of the United States. 

I have just received from Messrs. Mariatigue, Knight & Company, 
consignees of the brig Franklin, of Portland, intelligence of a most un- 
fortunate affair that occurred at Bahia Honda, on the 25th instant, in 
relation to which I beg leave to trouble your excellency with the fol- 
lowing statement and request. 

The said vessel, commanded by Captain Nehemiah Larrabee, a 
highly respectable man, left here on the 15th instant for Bahia Honda, 
to take in a cargo of molasses, having on board, for the necessary work 
to be done to the hogsheads, two coopers of this place, named Jacinto 
Munson and Andrez Fer. 



CASE OF THE BLACK WARRIOR, ETC 161 

On the morning of the 25th instant, when Captain Larrabee came 
upon deck, he perceived that his long-boat and two of his crew were 
missing. He immediately got into his. small boat, with three of his 
seamen to row her, and accompanied by the two coopers above named, 
to assist him against his mariners should they all turn against him ; 
and having done so, he proceeded to the mouth of the harbor, where he 
saw his launch pulling out to sea, and pursued her. Not having confi- 
dence in the fidelity of any of his crew, he had taken with him a gun, 
two pistols, and a sword. The sword and pistols he gave to the two 
coopers, keeping in his own hand the gun. When he had got near 
enough to the launch he hailed his two men, who were rowing her, and 
ordered them to stop, but they did not pay any regard to him. He 
then fired a shot at the boat, but this had no effect. He continued the 
pursuit, and, having approached still nearer, again ordered them to 
stop ; but they still persisted rowing away from the harbor, when he 
fired another shot, which caused them to stop. When the small boat 
got up with the launch, Captain Larrabee jumped into the launch, and 
one of the two men showing a disposition to persevere in the mutiny, 
Captain Larrabee struck him with his gun, which, though at the half- 
cock, went off. The load, most unrortunately, entered the head of the 
cooper, Jacinto Munson, who was in the other boat, and caused his 
immediate death. Captain Larrabee immediately proceeded to the 
fort, and they were all taken into custody. 

My object in troubling your excellency now is to. state these facts, of 
the accuracy of which I have no doubt, and to ask, if it be consistent 
with your excellency's view of what is proper in the case, that Captain 
Larrabee may be permitted to take in his cargo without interruption, 
and bring his vessel round here ; or, if your excellency should think 
it not proper to trust him at sea, that he be allowed to take in his cargo 
under any guard which may be thought necessary, and then be brought 
here in such way as your excellency may see fit to order. 

The taking in a load of molasses is a work which requires constantly 
the eye of the master of the vessel; and if Captain Larrabee should 
experience a long confinement at Bahia Honda, or should be obliged 
to come here before his cargo is all taken in, the consequence will be a 
long detention, which will probably result in the ruin of a poor and 
honest mariner, who is already, sufficiently afflicted w T ith the calamity 
of having taken, however unintentionally and innocently, the life of a 
worthy man, who was in the act of rendering him service. 

God preserve, &c. Havana, May 28, 1835. 

N. P. TRIST. 

Exemo. Sor. Don Miguel Tacon, &c, &c, 

Captain General, fyc., fyc 



Consulate of the United States. 
William Marion and Ellis (alias Ezra) Buzzle, the two seamen be- 
longing to the brig Franklin, of Portland, who committed the crime of 
putting to sea in the boat of said brig, and revolting against their cap- 



162 CASE OF THE BLACK WARRIOR, ETC. 

tain when overtaken by him, which led to the fatal accident that oc~ 
-curred at Bahia Honda on the 25th of last month, have thereby offended 
against the laws of the United States in a degree which makes it my 
duty to send them home for trial and punishment. I have therefore to 
request that your excellency will give the necessary orders for putting 
them at my disposal, and securing against their release until I shall 
find an opportunity for sending them away. 
God preserve, &c Havana, June 15, 1835. 



Exemo. Sor. Don Miguel Tacon, 

Captain General, tyc, &fc, fyc 



N. P. TRIST- 



CoNSULATE OF THE UNITED STATES. 

I beg leave to call your excellency's attention to the case of Captain 
Nehemiah Larrabee, of the brig Franklin, of Portland, whose misfortune 
in accidentally causing the death of a fellow-being has been not a little 
aggravated by the confinement experienced by him for some time in the 
callaboso de la fuerza, and by other harassing circumstances in the 
measures which it has been judged proper to pursue on the occasion. 

After his release from the callaboso, Captain Larrabee returned to 
Bahia Honda, where he had been compelled to leave his vessel ; and 
having completed her lading there, he brought her to this port, where 
she was cleared several days ago, and is now detained, to the serious 
injury of her cargo, (molasses) and of her owners in various other ways. 
Captain Larrabee having applied to me to know the cause of his deten- 
tion, I am altogether unable to give him an explanation of it, except 
that the proceedings (providencia) in the case are not closed; but Avhy 
they are not closed, it is out of my power so much as to imagine a 
reason. I am, therefore, under the necessity of asking the favor of your 
excellency to take the subject into consideration, and cause everything 
to be done which may properly be done to prevent the further deten- 
tion of said Captain Larrabee in this port. 

God preserve, &c. Havana, July 9, 1835. 

N. P. TRIST. 

Exemo. Sor. Don Miguel Tacon, 

Captain General, Sfc, fcc, Sfc. 



Mr. Robertson to Mr. Marcy. 

Consulate of the United States, Havana, 

March 9, 1854. 

Sir : I hasten to fulfil the promise I made in my dispatch No. 38. 
The"judicial tribunals in the island of Cuba are as various as the modes 
of procedure that each one of them has adopted. The tribunals 
proceed according to their special regulations, in conformity to the 
divers and even contradictory Spanish laws, and also in conformity to 



tJASE OF THE BLACK WARRIOR, ETC 163 

the practice of the royal audiencias of the island. (There is one audi- 
encia only at present, called the " Real Andiencia Pretorial de la 
Habana " that of Puerto Principe has lately been suppressed.) 

The following named tribunals exist : The court of the royal ex- 
chequer, tribunal de real hacienda. The war or ordinary military 
court, tribunal de guerra 6 militar ordinario. The permanent and 
executive military commission, tribunal de la comision militar exseculivo y 
permanente. Special court of the navy or marine, tribunal privativo 
de la real armada 6 marina. Special artillery court, tribunal privativo 
de artilleria. Special engineers' court, tribunal privativo de injenieros. 
Tribunal of commerce, tribunal de comercio. Tribunal of the church or 
ecclesiastical, tribunal eclesidslico. The ordinary or common courts, 
that judge all matters not coming within the jurisdiction of the various 
tribunals above mentioned. 

As the island is divided into various governments, and lieutenancies 
of government, politico-military, each governor and lieutenant governor 
has jurisdiction as adjudge of first instance (juez de primera instancia) 
upon all civil and military matters within his district. 

There is another court, called "Juzgado de Difuntos" attached to the 
royal audiencia, that has jurisdiction upon all property belonging to resi- 
dents dying intestate, when the heirs are abroad. v The delays and ex- 
penses for the settlement of such estates, caused in said court, are not 
equalled In any other part of the world. Each court has the simple 
and mixed imperium — that is, each has power to render sentence and 
enforce or execute the same. However, the decisions of the tribunal 
de real hacienda are appealable to the junta superior contenciosa. 
Those of the ordinary military court, if one of the parties to the suit is 
an officer of militia, may be appealed against by petitioning that the 
cause be re-examined or revised : this revision is effected by the judge 
of the first instancia, (the Captain General,) 'with his auditor de guerra, 
and another lawyer appointed for the case. If no one of the parties is 
a militia officer, the appeal is admitted and carried before the supreme 
court of war and navy, supremo tribunal de guerra y marina, residing at 
Madrid, where the parties must appear personally, or appoint attor- 
neys, to whom they are to furnish full instructions and the means to 
pay expenses. To the same superior court must go all suits appealed 
from the marine, artillery, and engineer courts. 

Against the decisions of the ordinary or common civil and criminal 
courts, appeals may be carried to the real audiencia pretorial, which 
superior court resolves upon them in second and third instance, (en se- 
gunda y terciera instancia,) according to the amount or thing that is in 
dispute ; and even these decisions may be appealed against and carried 
before the supreme court of justice in Madrid, whose first sentence may 
be revised. To make even a brief report of the various regulations of 
each one of these tribunals, would require many days, and to write 
some reams of paper. It is sufficient to know that in all of the tribu- 
nals, besides their special regulations and the laws of the Indies, the 
followins^Spanish codes are in use : Fuero juzgo, Fucro real, Leyes del 
Estilo, Las siete Parlidas Ordenamiento de Alcald, Ordenamiento Ileal, 
Nucva Recopilacion de Castilla, Novissima liecopilacion, Ordcnavzas Mu- 
nicipales, Ordenanzas de Intendentes de Nucva Espana, Cod/go de Comercio, 



164 CASE OF THE BLACK WARRIOR, ETC. 

Sinodo Diocesana, Reglamento de Milicias, and other various codes which 
it is not necessary to enumerate ; also all the royal ordinances and 
orders that, in a prodigiously large number, emanate from the sovereign 
of Spain. The most general practice in the proceedings of what is 
called a common civil suit, juicio civil ordinario, is the following : 

In the first place, the plaintiff must appear before the court and de- 
sire that the defendant be summoned before the same for the juicio de 
conciliacion ; in this act the judge endeavors to bring the parties to an 
amicable settlement. No suit at law can be carried on without having 
gone through that form, as all subsequent proceedings, no matter in 
what stage the suit may be, are illegal, and may be made null and 
void, if that prerequisite has not been complied with. If the parties 
come to no arrangement, the act is recorded. The plaintiff, if he de- 
sires to establish a suit at law, procures a certificate from said record, 
and then presents before the proper court his demand against defendant, 
in writing, upon stamped paper, accompanying the certificate before 
mentioned. The plaintiff's demand is ordered to be notified to defend- 
ant, and is called contestation : of this notification is given to the plain- 
tiff, which is called replica ; then the defendant or accused is again 
notified under the name of duplica. The cause is afterwards brought 
to proofs for the term that the judge may consider necessary, which 
term may be prorogued to ^eighty days, or even to six months, if the 
proofs or evidence are to be received abroad. When the term has 
elapsed, the evidence is made public, (to the parties,) and then the 
parties may challenge the witnesses. This proceeding lasts for a short 
time ; and when decided upon, the autos (papers connected with the 
suit) are handed to the parties in the suit that they may plead, (alegar.) 
After the pleadings have been gone through, sentence is rendered. If 
the sentence or decision is not appealed from within five days after, the 
judge that issued it has' it executed, and sometimes sixty days are 
allowed to argue against it as null. When the sentence is appealed 
against, the suit is carried before the audiencia as a superior court, 
where it is examined and decided upon. The first decision of the su- 
perior court may be approved or revoked on a revision. 

In criminal cases, the same modes of procedure must be observed, 
according to existing laws ; but the audiencias have restricted the pro- 
ceedings and length of time formerly allowed for the defence. The 
present practice in criminal cases before the common courts is reduced 
to the following: 

1. The summarial investigation of the criminal act; this is generally 
done by the commissaries of wards or 'captains of districts. 

Z. The charges are made known to the accused and his confessions 
taken. 

3. Answers of the accused and his assertions against the charges 
received. To this precedes the appointment of counsel, whom the ac- 
cused selects himself, if he is aged twenty-five years or upwards ; and 
if a minor, he nominates a guardian, or curator, ad litem. 

4. The proofs are received during the time that the judge may deem 
proper. 

5. Sentence is rendered ; which, whether it be appealed from or not, 



CASE OF THE BLACK WARRIOR, ETC. 165 

is carried to the audiencia, who confirms, revokes, or amends the sen- 
tence, either in favor or against the prisoner. 

The Governor and Captain General is an authority very difficult of 
defining; it is still more difficult to define what his attributes are. The 
all-powerful authority that he comes clothed with by secret royal 
orders, is the cause of the difficulty. He, the Captain General, may 
act agreeably to his own will, or according to circumstances ; so that, 
although his powers are determined in the common laws that have been 
promulged, still there is a great difference in the practice. There 
are many facts to make evident that the Governor and Captain Gene- 
ral has authority superior not only over all corporations and tribunals 
of Cuba, but even to that of the sovereign, as he revokes or amends 
the decisions of her tribunal and corporations, annuls or alters all 
regulations, and even leaves unfulfilled the sovereign's orders when 
he, (the Captain General) deems it proper. 

v The Governor and Captain General is the chief of the island in all 
respects. He is the chief in civil, military, and naval affairs, as well as 
those appertaining to the royal treasury. And as the sovereign is the 
natural patron or protector of the church in the Spanish dominions, 
the Captain General is her vice-royal patron in Cuba. His legal powers 
are expressed in the laws of the Indies, and' in a multitude of royal 
orders, all of which cannot be seen, some of them being secret. 

Executive and permanent military commission. — This tribunal was estab- 
lished in Havana by order of the Governor and Captain General, on 
the fourth of March, 1825, to try all cases of conspiracy and treason, 
and robbery, murder, and other crimes committed on the highways or 
in the country, out of the jurisdiction of cities or towns. On the 16th 
October of the same year, (1825,) as such tribunals had been suppressed 
in the whole of Spain, the King ordered the suppression of that in Cuba. 
That royal mandate remained unfulfilled, because the Captain General 
deemed it proper that it should subsist. In the royal order of Novem- 
ber 3, 1838, greater powers were given to this military commission, as 
the jurisdiction over causes before it cannot come in competition with 
that of any other tribunal in cases of doubt, be it of any class and nature 
whatsoever. There is no appeal or human recourse from its decisions, 
as will hereafter be seen, relative to the mode of executing its sentences. 
The tribunal is composed of a brigadier, who presides ; four members 
of the rank of majors or colonels of the regiments that garrison the city, 
or attached to those regiments ; four or more fiscales, (prosecuting offi- 
cers,) of the rank of captains or majors, each with his respective secre- 
tary, who is also military, of the rank of lieutenants or sub-lieutenants. 
The mode of procedure of said commission or court is contrary to all 
Spanish legislation subsisting, and to all rational jurisprudence ; as the 
mere denouncing that an individual is engaged in a conspiracy, or is 
suspected of holding treasonable ideas, whether the denouncer is pres- 
ent or absent, even in a foreign country, is sufficient. The military com- 
mission commences its proceedings by taking possession of the accused 
and all his papers ; the person of the accused is secured in a bartolina, 
(dungeon,) and entirely incommunicated, that is, debarred from all 
communication with his family, friends, and the world, until the pre- 
ventive proceeding called sumario, (the taking of his confessions, the 



166 CASE OF THE BLACK WARRIOR, ETC. 

informing him of the charges, and receiving the declarations of wit- 
nesses, &c, have been concluded. * The melancholy and horrible spec- 
tacle has been very commonly seen of the accused dying in the prison 
during the incommunication. Very often the accused, after a long im- 
prisonment of that nature, are set at liberty, because no evidence of 
guilt could by any possible means be established against them. This 
barbarous system destroys all social guarantees. Neither the subject of 
the country, nor the foreigner, the child or the old, nor any human 
being, is exempted from coming under this tremendous tribunal. . 

The proceedings in the causes before said court are diametrically 
opposed to the general laws of the kingdom, and contrary to reason 
or equity. 

The following is the manner in which those causes are established, 
which always put in imminent danger the lives and fortunes of men, 
and the welfare and peace of families. 

. After one or more persons have been denounced, or the least sus- 
picion entertained against him or them, their bodies are put in prison, 
&c, then the investigations that the fiscal thinks proper are com- 
menced. That officer is entirely at liberty to form judgment upon the 
investigations he has made, and the result depends thereupon. All his 
proceedings are secret. When the summarial examination has been 
concluded, and the fiscal deems it proper, the confessions of the 
accused are received, and charges are preferred against him without 
informing him of the nature of the summarial investigations, or the 
names of the witnesses who have testified against him, and he is made 
to select a defender out of the ten or twelve officers whose names 
appear in a list made out by the fiscal, (the officer for the prosecution.) 
The officer named (who generally has no idea or knowledge of the 
law r s, and in some cases, cannot even write his own name in a readable 
manner) makes out some sort of written defence, a mere form, because, 
being entirely ignorant of the laws, very little or nothing can he do in 
favor of the rights of his client. These defences are made within the 
peremptory and brief time allowed to the defender, and out of the 
memoranda of notes given to him, or that he extracts from the pro- 
ceedings. A day is appointed when the cause is brought before the 
court, and the military judges decide upon it and issue their sentence. 
This sentence is reported to the Captain General, who refers the same 
to his auditor de guerre, and with the advice of this officer confirms or 
revokes the sentence, or amends the same, and the resolution of the 
Captain General is executed without appeal or recourse of any nature. 

From the foregoing, the following conclusions are arrived at : 

1. That the government of Spain has acknowledged and resolved 
that the tribunals of the military commission are not good; that it has 
suppressed them in the peninsula, and retained them in Cuba. 

2. That the proceedings and modes of substantiating the causes over 
which such tribunals have jurisdiction, are contrary to the general laws 
of the realm. 

3. That the military judges and defenders, who have no knowledge 
of the common law, judge according to their will and by military laws, 
which are not those established for the people. 

4. That the inquisitorial system of secresy, in all proceedings, 



CASE OF THE BLACK WARRIOR, ETC 167 

destroys all social guarantees, and makes the lives, liberty, and fortunes 
of men depend upon the intrigues of a villain. 

5. That as the accused is compelled to choose a defender from 
among the officers whose names are written down on a list, and lim- 
ited in number to ten or twelve, he is deprived of a natural defence, 
and prevented from selecting the person that he may consider proper 
and capable for such a delicate trust. 
"' 6. That there being no appeal or recourse from the decision of the 
military court, and subsequently from that of the Captain General, the 
will of the said Captain General is the supreme law that disposes ot 
the life and fate of every human being in Cuba. 

The lawyers I have consulted advise me that, to avoid the confusion 
that the reading and studying of so many codes, regulations, and royal 
orders would produce, and to escape the many contradictions of the 
same, it is best to consult the work written by Don Jose Ma. Lamora, 
formerly chief justice (regente) of the audiencia of Havana, called 
Biblioteca de Legislacion UUramarina. This work is considered to con- 
tain all that is important. It is now very scarce. The price, like that 
for every other book here, is extravagant; but 1 have the pleasure to be 
able to send you a copy of it. I had omitted to state that the audien- 
cia has exclusive jurisdiction over causes for slave trade. 

I have the honor to be, sir, with great respect, your obedient servant, 

WM. H. ROBERTSON, 

Acting Consul. 

Hon. William L. Marcy, 

Secretary of State of the United States. 



ANNULLING OF THE CUBAN DECREE OF OCTOBER 7, 1844. 

Mr. Buchanan to Mr. Irving. 

[No. 43.] Department of State, Washington, 

May 9, 1845. 

Sir : On the 7th day of October last the supreme authorities of 
Cuba issued a decree, a copy of which, in translation, is herewith trans- 
mitted to you, authorizing the importation, duty free, of lumber and 
other articles necessary for building, and of corn, corn-flour, beans, Irish 
potatoes, and rice. This decree, by its terms, was to continue in force 
during six months from its date. It was dictated, as you will perceive, 
by a desire to relieve the distress of those who had suffered by the 
dreadful hurricane which the city and environs of Havana had then just 
experienced. No citizen of the United States could have supposed 
that the operation of a decree so humane and so politic would be 
arrested by the home government before the brief period had elapsed 
to which it was limited ; and this more especially, after the confident 
conviction, expressed on the face of the decree itself, that her Majesty 
would give it her approbation. 

On the faith of this decree our merchants, with a laudable prompti- 
tude, imported into Havana the materials for rebuilding the houses of 



CASE OF THE BLACK WARRIOR, ETC 

the suffering people, and the flour, rice, &c., necessary for their subsist- 
ence. Whilst this trade was in full progress, the decree itself was 
annulled, without one moment's previous notice, on the 25th of Feb- 
rury, 1845, by the promulgation of the fact that her Majesty had re- 
fused to give it her sanction, and that the former duties must hencefor- 
ward be levied. 

Many heavy shipments had been made in the United States of the 
articles embraced by the decree, under the confident belief that it 
would continue in force until the seventh day of April ; and you may 
judge of the disappointment with which the information of its repeal 
must have been received by the masters of those vessels upon arriving 
at Havana after the 20th of February. Severe losses were the inevi- 
table consequence ; and these ought, in justice, to be borne by the Span- 
ish government, which has received heavy duties on the articles that 
ought to have been admitted free. 

It would be a vain labor to enlarge upon the injustice of annulling 
this decree without any previous notice, and its violation of the com- 
mercial usages prevailing among enlightened nations. In the opinion 
of the President, those of our fellow-citizens who imported any of the 
articles embraced by the decree into Havana between the 20th Feb- 
ruary and the 7th April, 1845, without any knowledge, at the time of 
their departure from the United States, that the decree had been an- 
nulled, are entitled to be indemnified by the Spanish government for 
the losses which they may have sustained. "Without stating specifi- 
cally what ought to be the measure of this indemnity, it would seem 
reasonable that, at the very least, the duties actually received upon the 
importation of these cargoes ought to be refunded by the Spanish gov- 
ernment. 

I transmit herewith a copy of a communication from Mr. Campbell, 
the consul of the United States at Havana, to the Count de Villanueva, 
intendente of Cuba, dated on the day the fact of the Queen's reversal 
of the decree was made public, solemnly protesting against the pro- 
ceeding, and a copy of the reply which his excellency thought proper 
to make on the occasion. I transmit also a copy of a memorial from 
the Charleston Chamber of Commerce, and translation of the decree of 
7th of October, with copies of other papers relating to the same subject. 

With the motives and policy of her Majesty in reversing a decree 
dictated by humanity, and apparently by the best colonial interests of 
Spain, this government has nothing to do ; but it has a deep concern in 
everything which affects the safety of the commercial intercourse be- 
tween the two countries. And in submitting the facts here presented 
for the consideration of her Majesty's government, you are instructed 
to express to the Minister of Foreign Relations the confidence felt by 
your own government that prompt and effectual measures will be taken 
to repair the wrong which has been done to citizens of the United 
States. 

Your dispatches No. 62, inclusive, have been received. 
I am, sir, respectfully, your obedient servant, 

JAMES BUCHANAN. 



CASE OF THE BLACK WARRIOR, ETC 169 

Consulate of the U. S. of America, Havana, 

October 14, 1844. 

Sir: By the public journals forwarded by this consulate you will 
have seen that all duties for six months have been taken off the articles 
of rice, corn, com meal, lumber, potatoes, &c. In this condition ot 
things I would respectfully suggest that the discriminat.ng tonnage du- 
ties between Spanish and American vessels m the ports of the United 
States, where the former are loading with free articles for this island, 
be emoved for the space of time in which they are admitted free from 
duty. Such a modification would not injuriously affect our navigating 
inteLts, nor benefit that of Spain, for it is doubted if any Spanish 
veLel enters into the trade; the effect, however, might be beneficial, as 
evidencing, on the part of the United States, a disposition of recipro- 
city in the removal of commercial restrictions. Not that the authori- 
ties here, in the present instance, have been prompted in their action 
by auoht but the necessities of the island. They are, however, dis- 
posed to lessen duties generally on American products, so far as the 
intendente and his council feel authorized. 

In the article of flour, in which our western States are so vitally in- 
terested, I have endeavored, in conversation, to impress upon them the 
importance to the island of more moderate duties, and have discovered 
a favorable disposition. My suggestion in relation to the tonnage duty 
is made with a view to this great interest, the extent and importance 
of which needs no comment from me. I cannot, however, promise 
that the adoption of my recommendation will insu fi re /, mod ff f p C ; t ^ il ° f 
the present onerous daty upon flour, but am satisfied the effect would 
be to strengthen the parties interesting themselves about a reduction. 
I have the honor, &c, 

R. B. CAMPBELL. 

Hon. J. C. Calhoun, 

Secretary of State. 



Consulate of the U. S. of America, Havana, 

February 26, 1845. 

Dear Sir: I have the honor to enclose to you a copy of an official 
communication addressed by me to the intendente, on the subject ot 
the restoration of the duties on certain articles, which, by the decree 
of the 7th of October last, were admitted free. Accompanying this 
communication you will receive a translation of his reply thereto. 
I have the honor, &c, 

ROBT. B. CAMPBELL. 

Hon. John C. Calhoun, 

Secretary of State, Washington. 



170 CASE OF THE BLACK WARRIOR, ETC. 

Consulate of the United States, Havana, 

February 20, 1845. 
Sir : I have been astonished to find in the Diario of this morning an 
official communication from your excellency to the effect that her 
Majesty has refused to sanction the measures adopted by the authori- 
ties of this island, and promulgated by the publication of a decree 
dated October 7, 1844, which authorizes, free of duty, the admission 
of certain articles for the period of six months from the date of that 
decree, provided the royal assent is given thereto ; and in consequence of 
the royal disapprobation of the said decree, the duties are now restored. 
The. citizens of the United States of America engaged in commercial 
transactions with this island had well-grounded reasons for supposing 
that the royal approbation would not be withheld. No fears were en- 
tertained that the duties would be restored until the expiration of the 
time stipulated, and on these views have their transactions been based. 
They presumed that the authorities of this island were well acquainted 
with the wants of the inhabitants, that they had reflected maturely on 
the steps they had taken, and had the best opportunities of knowing 
what would be the action of her Majesty. These Considerations, and 
their confidence in the integrity and wisdom of your excellency and 
your advisers, induced large shipments from the United States, con- 
tributing to the comforts and relieving the necessities of her Majesty's 
subjects who were suffering from the effects of the disastrous gale that 
caused the remission of the duties. It is moreover understood that 
there has been an increased revenue from imports, and that your con- 
cessions to suffering humanity have not diminished the revenues, there-, 
by giving additional force to the conviction that your order of 7th of 
October last would not be repealed. There is known to be in transitu 
from the different ports of the United States, predicated on your previous 
order, large quantities of rice, lumber, and all the various articles em- 
braced in that order ; and if the shippers are compelled by this sudden 
and unexpected edict to pay duties, they must sustain great and unjust 
losses; against all which, in their name, I solemnly protest, as no timely 
notice of the intention of this government had been given — a notice, in 
my opinion, good faith and common usage required. The observance 
of which faith and usage I must urge upon your excellency, so far as 
to suspend the execution of the decree for such a limited period as will 
protect the innocent and deceived shipper, and save others from the 
disastrous effects of this precipitate and unforeseen action. 
I have the honor to be, &c, your excellency's, &c, 

ROBERT B. CAMPBELL. 



Havana, February 26, 1845. 
Sir: According to the royal instructions which govern this treasury 
in regard to foreign consuls of the island, the department does not deem 
itself competent to take cognizance of the subject referred to in your 
dispatch of the 20th inst., which I state to you as a reply, to be used 
in the manner you may judge most expedient. 
God preserve your worship many years. 

EL CONDE DE VILLANUEVA. 



CASE OF THE BLACK WARRIOR, ETC 171 

The Charleston Chamber of Commerce to Mr. Buchanan. 

Charleston, S. C, April 14, 1845. 

The memorial of the Charleston Chamber of Commerce respectfully 
represents, that your memorialists, taking into view the late act of the 
Spanish government, would beg leave to bring to your notice the great 
injury done to the merchants engaged in the trade between the United 
States and the island of Cuba, and to request that the subject may be 
taken into consideration by you, and redress obtained if practicable. 

The losses are heavy, and brought about entirely by the confidence 
in the integrity which all felt in the authorities of Cuba, and by which 
the merchants have been deceived into heavy shipments. 

In the spring and summer of 1844 a severe and long-continued 
drought caused the loss of the grain and fruit crop in the island, and 
induced the intendente de real hacienda to issue a decree reducing the 
duty on breadstuffs and certain other articles one-half. The decree 
continued in force until the 6th of October last, when, owing to a se- 
vere hurricane by which a large portion of the island was devastated — 
ruining the crops, blowing down many houses, and destroying almost 
all their ground provisions — the intendente immediately, with a philan- 
thropic spirit, seeing the immense sufferings of the people, issued a de- 
cree — a copy of which, translated, is annexed — admitting free of duty, 
for six months from the 6th October, rice, potatoes, and other vegeta- 
bles, lumber, and all other building materials ; thus fixing a definite 
period during which the above articles should be admitted free of 
duty. 

This led to large shipments from this country to Cuba, nothing 
doubting that the government of Spain would continue to permit imports 
of the above articles for the above time — five or six weeks being still 
wanted to complete the same. Much, however, to the surprise, and 
greatly to the injury of the shippers, they were informed, by letters da- 
ted 20th February, that the duties were to be levied instanler in fall, 
thus allowing no time to avoid heavy losses. The shippers certainly 
had no right to conclude or suppose that the time fixed by the decree 
might be shortened, and that at a period when it might be expected 
heavy shipments would be on the way. But if even, as it is affirmed, 
the home government at Madrid has refused to confirm the decree 
taking off the entire duty, the tariff which was established in the sum- 
mer, of half the duties, might have been expected to take effect. 

The injury done to the shippers has been very materially aggravated 
and increased by the manner in which the above order from Madrid 
was promulgated. The order, it is well known, was received in Ha- 
vana prior to the 15th February, and was not promulgated until the 
20th February. The regular packet, Hayne, sailed on the 16th Feb- 
ruary, and brought a large number of letters for this country. Most 
of the heavy shipments which are caught were made between the arri- 
val of the Hayne and the 5th March, the time when the news of such 
order reached this place. Had the order been published at Havana on 
the receipt thereof, it would have been known here by the 20th Feb- 
ruary, and thus have prevented most of the shipments which were 
made, and have made a difference of several hundred thousand dollars 



172 CASE OF THE BLACK WARRIOR, ETC 

to the merchants of this country. We are aware of heavy shipments 
of lumber from Maine, North Carolina, and Georgia, as well as from 
this State, besides other articles. From this State the loss on rice alone 
is heavy; the exports from Savannah and Charleston between the 
aforesaid periods being near 10,000 tierces, on which the duty will be 
$120,000. 

Craving reference to the subjoined list of duties on the different arti- 
cles as levied, and relying on your well-known regard for the interests 
of the commerce of this country, the subject is most respectfully sub- 
mitted to you. And your memorialists will ever pray, &c. 

Signed by order and in behalf of the Charleston Chamber of Com- 
merce. 

KER BOYCE, 

President. 

Attest : William B. Heriot, Secretary. 



A list of duties on the different articles as levied. 

Lumber per 1,000 feet, valued there at $20 per thousand, at 

24f per cent , $4 95 

Add 2 per cent 40 

5 35 
Balanza duty 1 per cent 5 

Per thousand 5 40 

Rice per 100 pounds, valued there at $6 per 100 pounds, at 

30f per cent., add 2 per cent 1 97 

Balanza duty 2 

Per 100 pounds rice 1 99 

Potatoes, valued at $2 50 per barrel, at 24f per cent 62 

Add 2 per cent 5 

67 

Beans, valued at $3 per barrel, at 30f per cent 93 

Add 2 per cent 6 

99 
Balanza 1 

Per barrel of beans 1 00 



CASE OF THE BLACK WARRIOR, ETC 173 

Translation of Decree. 

At an extraordinary meeting of the superior junta for direction of 
the royal revenues, the administrators general of the maritime and 
land rents, being present to take into consideration such measures as 
can be adopted by the (real hacienda) administrators of the royal 
revenues to alleviate the incalculable evils caused by the dreadful 
hurricane this city and its environs have just experienced, after 
taking into consideration, with the grief which should be felt, in view 
of the immeasurable calamities which are to be relieved, and the 
horrible distress which threatens all classes if such assistance as is 
within the control of the above authorities, who are charged with the 
well-being of all, be not promptly afforded — well assured that the 
magnanimous heart of her Majesty cannot but condole with us when 
she comes to the knowledge of such distress, and cannot but approve 
all that is done for the good of the inhabitants of this the pre (erred 
part of her monarchy — it was agreed : 

1. To concede absolute liberty to the importation of lumber, slate, 
tiles, shingles, and all kinds of wood for the construction of buildings. 

2. The same freedom from duties for six months, to count from to- 
morrow, to corn, corn-flour, beans, Irish potatoes, and rice, which, by 
resolution of the directive junta of 3d June last, do not pay but one- 
half; and that sweet potatoes, yams, and plantains continue to enjoy 
for the same term of six months that which was dispensed to them at 
that time, it being understood for this port, with reservation to extend 
to any other ports where necessity should require it for equally sad 
causes. 

3. That the reduction of duties on the consumption of meat, granted 
by the aforesaid junta on the ninth of the month anterior, take effect 
from the fifteenth of the present month on the following terms : the 
larger classes of animals — such as oxen and cows — shall not pay more 
than three and a half dollars per head, in place of the four which have 
been designated, and which shall continue imposed upon calves. Hogs 
shall pay according to weight — from one to four arrobas, four rials per 
arroba ; over four to eight arrobas, three rials ; from eight and upwards, 
two and a half rials. 

4. A subscription shall be immediately opened among the chiefs and 
those employed in the collection of the Queen's funds, (hacienda real,) 
the amount of which shall be placed for distribution under the orders 
of his excellency the Captain General. 

5. That the loans of 300 dollars from the Mountains of Piety be 
applied, and the period of the payment of the loans be extended. 

By all which measures, which shall be submitted for the sovereign 
approbation of her Majesty, and which they will announce to the public, 
the junta considered some of the effects of so terrible a calamity might 
be remedied without impeding any other measures which may be 
deemed necessary by his excellency the superintendent, in connexion 
with the other authorities of the island. 

And his said excellency having determined upon the accomplishment 
of the foregoing, it is published by his order for general information. 

JOAQUIN CAMPUZANO, Secretary. 

Havana, October 7, 1844. 



174 case of the black warrior, etc 

Consulate of the United States, Cardenas, 

March 3, 1845. 
Sir : I have the honor to enclose to the department a copy of a me- 
morial signed by the American merchants of this place, which I send 
at their request. 

I have also given notice of the same to the collector of this port. 
Very respectfully, &c, 

FRANKLIN GAGE. 
To the Secretary of State of the United States. 



Cardenas, February 26, 1845. 

Sir: The undersigned, citizens of the United States, engaged in 
commercial pursuits at this port, respectfully represent, that by an offi- 
cial order promulgated by the government of this island, under date 
of 20th February instant, certain articles which were declared free of 
duty on the 7th October last, for the six months then ensuing, are 
made to pay the same duties, with only a slight modification, as were 
levied previous to the issuing of that order; that this sudden re-im- 
position of duties, nearly two months previous to the expiration of the 
limited time, and without any notice whatsoever, most seriously will 
affect the interests not only of the undersigned, but more particularly 
of very, many of their correspondents, in the United States, who, re- 
lying on the good faith of this government, and the representations of 
the merchants of this place, that these certain articles would be ad- 
mitted free of duty until the 7th April next ensuing, the date limited 
in said order, have made, and are about making, large shipments of 
such property as will now be subject to duty, anticipating that they 
would be admitted free under the pledge given by this government 
and our representations; and that, in consequence, great and serious 
loss will accrue to all parties who may have availed or may yet avail, 
of the privilege given, particularly as we are advised of many adventures 
on foot and in course of shipment to afford the island extraordinary 
supplies, just previous to the expiration of the time named in said order 
of 7th October last; that these shipments, arriving here now in quick 
succession during the next six weeks, will all be subject to duty, under 
the new order, when it was anticipated they would be free, thus un- 
doubtedly entailing great and certain loss to all concerned, aside from 
the breach of faith which the new order makes public. 

The undersigned, therefore, in behalf of themselves, and more, pai- 
ticularly of their friends in the United States, who are most likely to 
suffer under this state of things, consider it their duty to represent the 
same to you, as the constituted representative of the United States at 
this place, and to respectfully request you to remonstrate with the 
collector of this district and port of Cardenas, and, if necessary, to 
protest against this sudden and uncalled for change in the tariff; and 



CASE OF THE BLACK WARRIOK, ETC 175 

further, to represent the matter to your government at home, for its 
information and action in the premises. 

JOHN R. STANHOPE. 
MATTHEWS & SAFFORD. 
TAYLOR & THOMPSON. 
Franklin Gage, Esq., 

U. S. Consul, Cardenas. 



Consulate of the U. S. of America, Havana, 

March 17, 1845. 

Dear Sir: It appears from the public papers that a good deal of 
excitement exists in the United States on the subject of the restoration 
of duties on certain articles, which by the decree of the 7th of October 
last were to be admitted free of duty for the period of six months, pro- 
vided that decree met the royal approbation. The Queen of Spain having 
refused to sanction the measures then adopted by the authorities of the 
island, an order was issued on the 20th of February last, by the inten- 
dente, for the immediate restoration of the duties. On the same day 
I addressed an official communication to him, protesting against this 
sudden and unexpected measure, without previous notice having been 
first given ; a copy of which, and a translation of his reply, were 
forwarded to you by the ship Norma, that sailed from New York on 
the 5th inst. It is impossible for me to say whether the duties that have 
been paid since the 20th of February will be refunded or not. The 
intendente has given directions that a separate account be kept of all 
articles imported since the 20th of February embraced in said decree, 
and consequently since his order for the resumption of the duties with 
the names of the several vessels bringing these articles, and the amount 
of duties paid thereon ; from which it is inferred that it is his im- 
pression that the excess of duties paid into the customs will be 
refunded by the Spanish government. On the faith of the decree of 
the 7th of October last, that the duties would not be exacted until the 
expiration of the time therein mentioned, (7th of April, 1845,) several 
cargoes of rice, lumber, potatoes, &c, have arrived from the United 
States, the shippers of which must, in case the duties are not refunded, 
sustain great and perhaps unjust losses. I am frequently called upon 
by parties interested for my opinion of the probability of these amounts 
being refunded, and have invariably found the querist dissatisfied with 
anything short of an affirmative assurance, which I am not able to 
give. 

The course pursued by the intendente in ordering separate accounts 
of the duties collected on the articles that were temporarily free, would 
seem to indicate this opinion (as he has the wish,) that these amounts 
would be restored to the importer, and it is probable the interest of 
the parties thus situated may be advanced by the American minister at 
Madrid being instructed by his government to urge that restoration with 
all his official influence. It is true, the removal of the duties for six 
months was contingent on the royal approval, and the shippers knew 
this fact; but as the measures of this colony have generally been ap- 



176 CASE OF THE BLACK WARRIOR, ETC 

proved, no apprehension was entertained in this instance, although 
cases have previously occurred of the refusal of the Spanish govern- 
ment to sanction the changes made by the intendente and his advisers. 
You will perceive by my letter to the intendente, and his answer, 
(already forwarded,) that I did not communicate with the Captain 
General, the subject being one over which he could exercise no control, 
and belonging entirely to the department of the intendente, it would 
have been useless to address him. 

It is understood that the course of the intendente, who is every way 
disposed to a liberal tariff, has made him unacceptable to the Spanish ; 
his removal is deemed certain. 

I have the honor to be, &c, &c, 

ROBERT B. CAMPBELL. 

Hon. John C. Calhoun, 

Secretary of State, Washington City. 



Messrs. Henry A. Coit, Spofford, Tileston Sf Co., and Howland Sf Aspin- 

wall, to Mr. Buchanan. 

Sir : For ourselves, and in behalf of our fellow-citizens engaged in 
the trade with the island of Cuba, we take the liberty of soliciting your 
attention to a recent act of the Spanish government, affecting our in- 
terests. 

It is, doubtless, known to you, that for the purpose of alleviating the 
distress occasioned by the hurricane and drought which have visited 
that island, a decree was promulgated by the authorities at Havana, 
several months since, liberating from the payment of duties certain 
articles of lumber, corn, corn meal, rice, beans, &c, upon their intro- 
duction into that and other ports in the island, for the term of six months, 
now about expiring. 

In virtue of this decree, importations have been made to a very con- 
siderable extent into the island from this country, up to the latest dates 
which have reached us, all of which, subsequent to the date of a new 
decree, dated Havana, February 20th ult., reimposing duties on the 
articles referred to, in consequence (as therein stated) of orders received 
from Spain to that effect, have been subjected to the payment of duties, 
and have resulted in heavy losses. 

We would, therefore, respectfully submit to your decision, whether, 
acting in the good faith of the original decree, and without a previous 
intimation of its reversal in season to prevent shipments which were in 
progress, or contracted for, from being made from this country, full re- 
dress, extending to the amount of duties thus levied, as well as to any 
damage which their interests may have sustained, is not due to us and 
our fellow-citizens who may have suffered in the manner described. 
Very respectfully, &c, &c, &c, 

HENRY A. COIT. 
SPOFFORD, TILESTON & CO. 
HOWLAND & ASPINWALL. 



CASE OF THE BLACK WARRIOR, ETC 177 

Mr. Irving to Mr. Buchanan. 

[Extract.] 

|No. 67.] Legation of the United States, Madrid, 

June 25, 1845. 
***** 

Dispatch No. 43 (accompanied by documents) relates to injuries, 
resulting to citizens of the United States from the annulling, by the 
Spanish government, of the decree of the supreme authorities of Cuba, 
authorising the importation of certain articles into the island for six 
months free of duty. I passed a note to the Spanish government some 
days since in conformity with your instructions, but as yet have received 
no reply. The Belgian charge d'affaires is making an urgent representa- 
tion on the same subject, and it is vigorously advocated in the Cronica, 
a paper recently set up here, and devoted to colonial interests, especially 
those connected with the island of Cuba, and to which paper I occa- 
sionally furnish facts and intelligence. 

It is extremely difficult, however, to get any questions of that kind 
attended to by this government at present. The disjointed state of the 
cabinet, part at Madrid and part at Barcelona, interrupts the regular 
course of business; while the complicated negotiations with the court 
of Rome; the perplexed question of the marriage of the Queen; the 
agitations and alarms caused by the recent abdication of Don Carlos, 
and the manifesto of his son ; the reports of plots, conspiracies, internal 
and external, and the disastrous fluctuations of the funds, in which 
some persons high in place are supposed to be implicated — all these 
distract the attention and disturb the minds of ministers, and ren- 
der them heedless of all affairs but such as are immediately important 
to their political existence. 

I am, sir, very respectfully, your obedient servant, 

WASHINGTON IRVING. 



Mr. Irving to Mr. Buchanan. 

[Extract.] 

[No. 69.] Legation of the United States, Madrid, 

July 10, 1845. 
Sir: ******* 

1 have received no reply as yet to my note to the Minister of 
State, claiming restitution of duties wrongfully imposed on American 
merchandise shipped to Cuba under the " duty free" decree. Indeed, 
the absence of part of the Cabinet with the Court at Barcelona inter- 
rupts the whole course of business. 1 have forborne to follow the Court 
to Barcelona this year, having received no instructions from government 
on the subject, and there being a probability that the royal sojourn in 
that city would be very short. Should the absence of the Court from 
the capital be prolonged, I may find it expedient to pay a brief visit 

to prevent being thought wanting in respect. 

********* 

Hon. James Buchanan, 

Secretary of Stale, Washington. 
12 



178 CASE OF THE BLACK WARRIOR, ETC 

Mr. Barringer to Mr. Marcy. 

[Extract.] 

[No. 152.] San Ildefonso, August 11, 1853. 

Sir: On the 7th of October, 1844, the Captain General of Cuba 
issued a decree, suspending for a given period the usual import duties 
on provisions, with a view to induce a rapid supply of the scarcity 
under which the inhabitants were then suffering. Various vessels of 
the United States, England, France, Sweden, and others, on the faith 
of this decree, went with large cargoes of provisions ; and although 
they reached Cuba within the period fixed in the same decree, and 
complied in all respects with its requisites, they were nevertheless com- 
pelled to pay the accustomed duties. 

Reclamations have been made against Spain for the injury thus in- 
flicted, and the claim of England especially is now being prosecuted 
with urgency. She has a demand for about $100,000. The loss sus- 
tained by vessels of the United States by this transaction is stated to 
be at least double that sum, or about $200,000. The subject was 
brought to the attention of the Spanish government shortly afterwards, 
under instructions from the department, but nothing was definitely 
done, and the matter has not been since considered. It was not until 
recently that I have obtained knowledge of the fact that other govern- 
ments were prosecuting these claims, and I have not deemed it advi- 
sable, after so long a length of time, to renew the claims of our own 
citizens without fresh instructions from our government. Under all the 
circumstances, the subject is now brought again to the attention of the 
department, either for new instructions to my successor, or the adop- 
tion of such other course as .may be deemed best by our government, 
respectfully adding my opinion that something ought to be done in 

reference to this claim. 

####### 

Hon. W. L. Marcy, 

Secretary of State. 



CASE OF MICHAEL D. HARANG. 
Mr. Gallaher to Mr. Forsyth. 

[Extract.] 

Consulate of the U. S. of America, Ponce, Porto Rico. 

March 2, 1839. 

Sir : Since I had the honor to address you on the 23d November 
last, a demand of 15 per cent, on the property of Luis Alexander 
Harang, deceased, has been made and exacted by the intendant of 
Porto Rico. 

On application of Michael D. Harang, one of the heirs, the other three 
of whom are residents of Parish Jefferson, State of Louisiana, I ad- 



CASE OF THE BLACK WARRIOR, ETC 179 

dressed a letter, of which the enclosed is a copy, to the intendente, and 
hoping to have heard from him, I have delayed writing you till now, 
but as yet no answer has been given, although our consul in the city 
has waited on him several times to know his determination. 

In the mean time the exaction of near $11,000 has taken place, and 
the sole resource of the heirs of Luis Alexander Harang, who are 
citizens of the United States, remains in the view which will be taken 
by the government of the United States on this proceeding. 

I remain, with great respect, your obedient servant, 

J. C. GALLAHER. 

Hon. John Forsyth, 

Secretary of State, Washington. 

P. S. I open my letter to enclose copy of protest made before me 
this day, by Michael Drausin Harang. 



Consulate of the United States of America, 

Ponce, Porto Rico, February 4, 1839. 
Sir : I have the honor to represent that Michael Drausin Harang, a 
native of New Orleans, in the United States of America, and for some 
time past a resident of the district of Ponce, has applied to me, claim- 
ing to be a citizen of the United States, and stating that the government 
of Porto Rico, in virtue of the real cedula of August 10, 1815, have 
demanded of him 15 per cent, for duty of extraction on the property 
left by his deceased father, Luis Alexander Harang, said Michael 
Drausin Harang believes (and I concur in opinion,) that said real cedula 
cannot apply to citizens of the United States without violating the lltn 
article of the treaty, made at San Lorenzo el Real, between the United 
States and Spain, on the 27th of October, 1795, which said treaty was 
confirmed in all and each one of its articles, excepting the 2d, 3d, 4th, 
21st, and 2d clause of the 22d article, by another treaty made at Wash- 
ington on the 22d February, 1819. 

Under these circumstances, I beg leave respectfully to ask, that if 
any orders may have been given for the collection of said 15 per cent., 
that they may be suspended, until the understanding of the govern- 
ments of the United States and of Spain may be had on this subject — 
said Michael Drausin Harang giving sufficient security in the mean 
time for the amount claimed. 

I have the honor to be, &c, 

J. C. GALLAHER, 

United States Consul. 
Al Senor Don Antonio Maria del Valle, 

Intendente de la Isla de Puerto Rico. 



Know all men by these presents, that, on this second day of March, 
in the year one thousand eight hundred and thirty-nine, before me, 
James C. Gallaher, consul of the United States of America, at this 
port of Ponce, in the island of Porto Rico, personally came and 
appeared Michael Drausin Harang, a native of parish Jefferson, State 



180 CASE OF THE BLACK WARRIOR, ETC. 

of Louisiana, in. the United States of America, who declared, that his 
father, Lewis Alexander Harang, died in the city of New York, in the 
United States of America, on the fifteenth day of September, in the 
year one thousand eight hundred and thirty-five, having left by will, to 
his four children, Lewis, Matilda, John Pascal, and the deponent, his 
property in the island of Porto Rico, which consisted of a sugar estate 
and some other property — of which said property deponent, by order 
of, and in pursuance of a power of attorney from the other heirs, made 
sale for the purpose of remitting the proceeds to the other heirs, re- 
siding in parish Jefferson, State of Louisiana, and all natives of said 
State. Deponent further states, that by order of the intendencia he 
has been forced to pay the sum of ten thousand nine hundred and 
seventy-eight dollars one real and sixteen maravedices, for the duty of 
extraction, contrary to the eleventh article of the treaty made between 
the United States and Spain, on the twenty-seventh of October, one 
thousand seven hundred and ninety-five, and confirmed by another 
treaty, made on the twenty-second day of February, one thousand 
eight hundred and nineteen. 

And, therefore, the said Michael Drausin Harang doth solemnly 
protest against the order of the intendencia, as also against all and 
every other person or persons whom it shall or may concern, for all 
losses, damages, and detriments that have occurred, or may occur, to 
the estate of his father, Lewis Alexander Harang, deceased, in conse- 
quence of these proceedings, as well as for deponent's detention in this 
country, and doth appeal to the government of the United States of 
America, of which he is a citizen, for protection. 

Of all which act I have hereunto affixed my hand, in Ponce, Porto 
Rico, this second day of March, in the year one thousand eight hun- 
dred and thirtv-nlne, as aforesaid. 

M. D. HARANG. 

Before me, 

J. C. GALLAHER, United States Consul 

Ponce, Porto Rico, March 2, 1839. 



Mr. Forsyth to the Chevalier aV Argaiz. 

Department of State, 

Washington, February 28, 1840. 

Sir: A representation has been addressed to this department by 
Mr. M. D. Harang, a citizen of the United States, setting forth that the 
authorities of the island of Poito Rico had compelled him to pay, into 
their hands, a sum of money demanded of him as duty of extraction 
(derecho de estraccion) upon the proceeds of estates descended to him on 
the death of his father, Lewis Alexander Harang, also a citizen of the 
United States, who, some time before his death, had resided in said 
island. If the facts stated by Mr. Harang are such as he represents 
them, the demand referred to is so manifest an infraction of the 
eleventh article of the treaty of 1795, one of the articles confirmed by 
the treaty of 1819, that it must be supposed to have been occasioned 



CASE OF THE BLACK WARRIOR, ETC 181 

by inadvertence or misconception on the part of the colonial authori- 
ties. No doubt is entertained that a proper application to her Majesty's 
government, at Madrid, would be followed by immediate orders for the 
repayment of the money thus wrongfully demanded of Mr. Harang ; 
but as the delay necessarily attending such a step would greatly add 
to the injury already suffered by him, in consequence of the detention 
of his property, I request that you will use your influence with the au- 
thorities of the island to prevail upon them to re-examine the question 
with as little delay as possible, in order that justice, which is so clearly 
due under the treaty to which I have referred, may be done to the 
claimant. 

I avail myself of the opportunity to convey to you renewed assur- 
ances of my distinguished consideration. 

JOHN FORSYTH 

The Chevalier d'Argaiz, &c, &c, 

Spain. 



The Chevelier d'Argaiz to Mr. Forsyth. 

[Translation.] 

Washington, March 2, 1840. 

My Dear Sir : I have received the letter which you were pleased 
to address me on the 28th February last, to inform me of the applica- 
tion which Mr. M. D. Harang, a citizen of these States, had ad- 
dressed to the Department of State, setting forth that the authorities of 
the island of Porto Rico had exacted from him a certain amount of 
money for exportation duty upon the produce of property he inherited on 
the death of his father, who was for some time established in that island ; 
and, inasmuch as this measure could not have been adopted, except 
through carelessness or misunderstanding on the part of the authorities 
of that island, of the eleventh article of the treaty of 1795, and that to 
apply to her Majesty's government at Madrid would involve new delays 
and injury to the party interested, you ask me to use my influence with 
the authorities of that island, recommending them to re-examine the 
question with all possible speed, in order that justice, so clearly due, 
according to the treaty you have quoted, may be rendered to the peti- 
tioner. 

In reply, I must say to you, that herewith enclosed you will find a 
communication for her Majesty's intendant in the island of Puerto 
Rico, to whom, at the same time that I transmit a copy of your letter, I 
enclose a copy of the 11th article of the treaty of 1795, and recommend 
to him, as much as it is in my power to do, a favorable and prompt 
settlement of this business ; and I have no doubt that, if it is in his 
power, he will hasten to give a new proof of the respect which her 
Majesty's government and its authorities have and observe for the stip- 
ulations of treaties which unite them with those powers that are her 
Majesty's allies and friends. 



182 CASE OF THE BLACK WARRIOR, ETC 

I avail myself of this occasion to renew to you the assurance of my 

D'ARGAIZ. 



distinguished consideration. 



Mr. Forsyth to Mr. Gallaher. 

Department of State, 

Washington, March 4, 1840. 

Sir : A letter has been addressed to this department by M. C. Ha- 
rang, asking its interposition in obtaining from the authorities of Porto 
Rico restitution of a sum of money which he alleges to have been 
levied as a duty of extraction upon the proceeds of estates descended 
to him from his father. 

So far as the circumstances of this transaction appear from Mr. Ha- 
rang's letter and your several communications on the subject, the 
demand of the duty referred to cannot be viewed in any other light than 
a direct infraction of existing treaty stipulations between the 0nited 
States and Spain, calling, very properly, for the representation inter- 
posed by you. 

In support of the renewal of it, which you are hereby instructed to 
make, I have requested the minister of Spain near this government to 
use hi§ influence with the proper authority in Porto Rico, recommend- 
ing a just observance of the treaty ; and the letter which, to that effect, 
he addresses to the intendant of the island is herein enclosed, to be for- 
warded by you. 

Should the* repayment of the money be longer resisted, you will state 
the fact to this department, and transmit to it all the information neces- 
sary to a full understanding of the merits of the question, with a view 
to a direct application for redress to the metropolitan government, if 
circumstances should be found to authorize it. 

A letter from Mr. Harang to yourself is, likewise at his request, here- 
with transmitted to you. 

I am, &c, 

JOHN FORSYTH. 

J. C. Gallaher, Esq., 

United States Consul, Ponce. 



Mr. Gallaher to Mr. Forsyth. 
[Extract.] 

FNo. 18.] Consulate of the U. S., Ponce, Porto Rico, 

April 11, 1840. 

Sir : I have the honor to acknowledge the receipt of your communi- 
cation of the 4th ultimo, enclosing a letter for the intendente, a letter 
from Harang, with pow T er of attorney, and instructions with regard to 
my further proceedings in this business. 



CASE OF THE BLACK WARRIOR, ETC 183 

From the accidental mislaying of a paper, I was inadvertently led 
into an error in my communication to the department, No. 16, dated 
January 18, with regard to my never having received a communica- 
tion from the intendente. On a careful re-examination of my papers, 
after receipt of your instructions of 4th ultimo, I discovered a commu- 
nication which, according to my endorsement, had been received by 
me on the 19th March, 1839, (seventeen days after Harang's protest 
had been made,) but had been unaccountably mislaid and forgotten, 
in the press of other business. It however does not, in the least, affect 
the representations I have made to the department, as will be seen by 
the copy which I herewith enclose, attached to which I have put very 
nearly a literal translation in English. The true question, although at- 
tempted to be mystified by these gentlemen, is simply whether Mr. 
Harang is an American or not, and as an American is he entitled to 
the protection of the treaty. I have the honor to enclose you copies of 
the letters I have addressed to the Captain General and to the inten- 
dente, and will forward you copies of their replies the moment I receive 
them. 



Consulate of the U. S., Ponce, Porto Rico, 

April 6, 1840. 

Sir: I have the honor to inform your excellency that I have feceived 
dispatches from the government of the United States approving of the 
representations made by me, as contained in my letter of February 4, 
1839, to the Senor Intendente of the island of Porto Ripo, of which I 
have the honor to enclose herewith a copy, as also of the protest made 
before me by Michel Drausin Harang, on the 2d of March, 1839, of 
which, on the same date, I forwarded a copy to the Senor Intendente. 

I am instructed by the government which I have the honor to repre- 
sent to state, that " the demand of the duty referred to cannot be viewed 
in any other light than a f direct infraction of existiug treaty stipulations 
between the United States and Spain ;" and I am further instructed 
respectfully to ask of your excellency to give the necessary orders for 
the repayment of the money exacted from said Harang by the author- 
ities of Porto Rico, amounting to the sum of ten thousand nine hundred 
and seventy-eight dollars one real and sixteen maravedices ; for the pur- 
pose of receiving which the power of attorney of said Michel Drausin 
Harang, sealed and certified by the chief judge of the circuit court of 
the United States, by the Secretary of State of the United States, and 
by the secretary of the Spanish legation at Washington, has been for- 
warded to me, under cover of the dispatches before mentioned, and 
can be examined by whomsoever your excellency thinks proper to name 
for that purpose. 

I have the honor, &c, 

J. C. GALLAHER, 

United States Consul. 

His Excel' cy the Governor and Captain General 

of the Island of Porto Rico, and Swperintendente of the same. 



184 CASE OF THE BLACK WARRIOR, ETC. 

Consulate of the U. S., Ponce, Porto Rico, 

April 6, 184a 
Sir : I have the honor to inform you that, under cover of despatches 
from the government of the United States, I have received the enclosed 
letter, with directions to, and which I have now the honor to forward. 
I have the honor to remain, with great respect, your ob*t servant, 

J. C. GALLAHER, 

United Stales Consul. 
To the Intendentk of the Island of Porto Rico. 



I have received your communication of what Michel Drausin Harang 
has stated with regard to the 15 per cent, which is exacted as duties 
on the extraction of the property left by his deceased father, Luis 
Alexander Harang, and have passed it to the gentlemen, the fiscal of 
the royal custom-house and the assessor of this intendency, and, with 
dates of the 15th and 23d of the present month, they have answered 
me as follows : 

" Sr. Intendente : The fiscal of the royal custom-house ought to 
state that, without doubt, Harang has purposed to confound and dis- 
naturalize this business j that, if this minister does not recollect badly, 
Harang has made reclamations as a subject of the French government, 
after having placed himself before a tribunal ; and, finally, that all these 
conducts are extemporaneous and captious, your excellency not being 
able to prescind manifesting it in this manner to the consul, indicating 
to him that Harang has suits pending before the tribunals, and in them 
is where he o»ght to represent without treating of surprising the con- 
suls and authorities. Thus verified, this expediente ought to pass to 
the tribunals." 

Sr. Intendente : I adhere to the opinion of the Sr. Fiscal, Dn. Miguel 
Harang being at liberty to use all the recourses which he may consider 
will assist him before the competent tribunals, being assured that that 
of the royal custom-house will observe religiously the existing laws, as 
well with respect and veneration for treaties which exist between 
Spain and the United States, without forgetting that Harang has made 
a representation to your excellency, through the French consul, not 
many days since. Your excellency may answer in this manner, or as 
you may judge more proper, being pleased to pass this answer to the 
tribunal, in order to give it the corresponding course. And in con- 
formity with the foregoing opinions, I remit them to you for your infor- 
mation and as an answer. God preserve you many years. Porto 
Rico, 27th February, 1839. 

ANTO. MA. DEL VALLE. 

Sr. Consul of the United States of America, Ponce. 



CASE OF THE BLACK WARRIOR, ETC 185 

[Translation.] 

Office of the Captain General, and of the 

Superior Political Government, Section 1. 

Porto Rico, April 18, 1840. 

By the official letter you have addressed me on the 6th instant, I 
learn what you state to me concerning the claim of Mr. Miguel Drausin 
Harang, relative to the reimbursement to him of the amount of ten 
thousand nine hundred and Eighteen dollars one real and sixteen 
maravedis, which was exacted from him on account of 15 per cent, 
duty on the exportation of property which he inherited from his father, 
and which he conveyed to the United States ; and, in replying to you 
on the subject, I must say, that the matter in question, of which until 
now I had no notice whatsoever, coming under the private cognizance 
of the intendente, to whom he has already submitted his claims by means 
of the document, a copy of which you enclosed to me ; and the aforesaid 
intendente being in correspondence upon the same subject with the 
charge d'affaires of Spain, near the government of the United States, 
he can settle the matter with the financial authority alluded to, in all 
that concerns the exaction of the duties which have occasioned his com- 
munication aforesaid. God preserve you a thousand years. 

MIGUEL LOPEZ DE BANOS. 

Mr. J. C. Gallaher, 

United States Consul at Ponce. 



The Chevalier oVArgaiz to Mr. Forsyth. 

[Translation.] 

Washington, December 24, 1840. 

Sir : You wall remember that, in consequence of the note which you 
were pleased to address to me under date of the 28th of February last, 
I had the honor to enclose to you, with my reply of the 2d of March 
following, a dispatch to the most excellent intendant of the island of 
Porto Rico, in which I communicated to him your above-mentioned 
note, together with a copy of the eleventh article of the treaty of 1795. 
The intendant answered me, under date of the 30th of August, as 
follows : 

" After a long delay I had the high honor to receive your excellen- 
cy's official communication of the 2d of March last, containing, inserted, 
another from the Secretary of State at Washington, making various 
observations relative to the claim addressed to him by the citizen Mr. 
Miguel Drausin Harang, for the recovery of a certain sum of money 
which the royal treasury of this island extracted from the portion of 
the estate of his deceased father, Don Alejandro Harang, inherited by 
him, on carrying it to a foreign country,, of which affair your excellency 
requested me to make an immediate examination, agreeable to the 
desires of the Secretary of State, based upon the literal expression of 
the eleventh article of the treaty of October 27, 1795, between the 
court of Madrid and the States of the Union. 



186 CASE OF THE BLACK WARRIOR, ETC 

" The absence of the legal counsellor, (ministro asesor) of this in- 
tendency, and the circumstance that the documents relative to the 
claim before the courts of justice are not to be found, prevent me from 
answering your excellency by satisfactory observations on a matter so 
complicated, and which really no longer remains within the limits of 
my authority, since the person, who is now regarded as a citizen of the 
ynited States, has subjected it to the course of law. 

"I will state to you, with my characteristic frankness, agreeable to 
the suggestions made by the legal counsellor of this intendency, under 
my charge, that Mr. Miguel Drausin Harang has advanced several 
different pretensions with the view of freeing himself from the payment 
established by the royal cedula of colonization of August, 1815, upon 
all personal property (capital) acquired by persons naturalized in this 
island, after a certain number of years of residence, when it is to be 
taken to a foreign country, without an}?- difference in regard to Span- 
iards or strangers. Harang pretended that his father should be consid- 
ered as a Spaniard, from having been born at New Orleans when that 
place belonged to Spain ; he then pretended that he should be considered 
as a Frenchman, because New Orleans was transferred to that nation 
by treaties ; and, finally, he appears in the garb of a citizen of the United 
States of America. These observations will serve to convince your 
excellency that Harang' s whole object has been to elude compliance 
with the laws governing this colony. No one will be conscientiously 
persuaded that his father could have been a Spaniard of New Orleans, 
a Frenchman of New Orleans, a colonist of Porto Rico, a naturalized 
Spaniard, and a citizen of the United States at one and the same time, 
with rights entirely contradictory. 

" Don Alejandro Harang accepted the cedula of August 10, 1815, and 
all its consequences. The 14th article of that cedula, with which the 
Secretary of State of the Union is probably unacquainted, is in these 
exact words, which I have the honor of copying : " Art. 14. During 
the first five years of residence in this island, Spanish mid foreign colonists 
shall have liberty to return to their countries, or former places of resi- 
dence, and in that case they shall be permitted to take away from the 
island the money and effects which they brought thither; but of what 
they acquired, or added, they shall contribute ten per cent., it being 
well understood that the lands which may have been allotted to such 
colonists as leave the island voluntarily, shall revert to my royal patri- 
mony, to be appropriated for the benefit of others, or as I may consider 
most advantageous." Your excellency will here observe, that in this 
article no distinction is made between Spaniards and foreigners, or 
father that it comprehends both expressly, and consequently Harang 
can have no ground for complaint, and cannot cite in his behalf the 
eleventh article of the treaty of 1795, since that article requires a reci- 
procity which Spain never fails to observe, though it never can take 
place in the present question, as I shall in a few words demonstrate. 

The 15th article on which the court of revenue [tribunal de ren- 
tas] relies in this case of Harang, says as follows: "I grant to the old 
and new colonists (Spaniards and foreigners, according to the 14th 
article) who may die in the island without regular heirs, the privilege 
of leaving their property to their relations or friends, wherever they 



CASE OF THE BLACK WARRIOR, ETC. 187 

may be ; and if such heirs wish to establish themselves in the island 
they shall enjoy the privileges conceded to the person from whom they 
inherit ; but if they prefer carrying away the property inherited they 
may do so on paying upon the whole fifteen per cent., as duty of ex- 
traction, in case the colonist from whom they inherit had been more 
than five years established, and only ten per cent, if he had been estab- 
lished only for a shorter period, agreeably to the terms of the preceding 
(14th) article. With regard to those who die inteslate, their fathers, 
brothers, or relations, even though established in a foreign country, shall 
inherit fully, provided they establish themselves in the island, being 
Catholics ; and, in case they cannot or do not wish to reside there, I 
allow them to dispose of their inheritance by sale or cession, according 
to the regulations prefixed in the two preceding articles." 

Your excellency will easily understand that, by the articles which I 
have copied, Don Alejandro Harang, a colonist of the island of Porto 
Rico, whether considered as a North American, as is now solicited, or 
as a Frenchman, in which character he appeared at first, or as a Span- 
iard born in New Orleans, as pretended at another time, or even if born 
in Madrid, could, before the end of five years of residence in the island, 
himself or his heirs, take away his property to a foreign country, as he 
pleased, on paying ten per cent, as duty of extraction ; and as Don 
Alejandro Harang did hold a letter of naturalization, and was converted 
into a Spaniard, which rights, according to the cedula, he could not 
have acquired until after having resided five years in the island, (where 
he indeed resided more than ten or fifteen years,) he was at liberty to 
dispose of his property by testament in favor of his children, who would 
inherit it ab intestato, or of his relations or friends, with the condition of 
paying fifteen per cent, upon the whole, as duty of extraction, if they 
wished to carry it away. Such is the case of Mr. Miguel Drausin 
Harang, in which he is not sustained by justice. His father, in soliciting 
the letter of naturalization rendering him a Spaniard, complied with 
the laws in force in the colony ; and consequently, as the royal cedula 
of colonization bears date the 10th of August, 1815, twenty years pos- 
terior to the treaty alluded to, it cannot be cited in favor of Harang 
without straining its sense ; and 1 do not understand how the Secre- 
tary of State at Washington can endeavor to support this claim, seeing 
that the same duty of extraction is levied upon subjects of Spain and 
foreigners. 

Harang, indeed, cannot with any justice complain of the payment 
required from him in virtue of the above-mentioned cedula. The muni- 
ficent character of that document may, perhaps, be unknown to the 
honorable Secretary of State at Washington. It has always merited 
the highest praise from subjects and foreigners, on account of the innu- 
merable privileges and immunities accorded by it to the colonists. 
They thereby became freed for fifteen years from all duties on impor- 
tation of articles of commerce from a Spanish country, and even from 
duties on exportation of the produce of the island. They were ex- 
empted from tithes, as also from alcabala, alcabillila, and every species 
of contribution or tax on consumption, transportation, or introduction. 
These colonists, whether Spanish or foreign, received grants of land 
according to their condition, sex, and family. At the end of five years 



188 CASE OP THE BLACK WARRIOR, ETC. 

of residence they entered, if they wished, into the enjoyment of the 
rights of Spanish citizens, by receiving letters of naturalization for the 
colonists and their children, without the slightest distinction. For so 
many favors, exemptions, and privileges some recompense, certainly 
trifling when compared with these great and abundant benefits, was 
demanded ; and this shows the justice of the fourteenth and fifteenth 
articles of the above-mentioned cedula. The colonists' accepted what 
was useful and profitable to themselves ;. and they also, at the same 
time, accepted all the consequences. The honorable Secretary of For- 
eign Affairs of the United States cannot certainly desire that the laws 
of other countries should be treated as jests and trifles. He certainly 
will not expect that the children of Don Alejandro Harang should be 
in a better condition than Spaniards themselves. He will not maintain 
that Alexander Harang, a Spaniard, who for so many years before his 
decease enjoyed the rights of a Spaniard, should at the same time have 
beeen, and have enjoyed the rights of, a citizen of the United States.- 
This would be a play upon words, giving no rights and supporting no 
acts. And even though he should never have ceased to be a citizen of 
the United States, yet this plea would not avail in his favor ; and still 
less would the treaty of 1795, and its eleventh article, since it only 
requires reciprocity. The cedula establishes that for Spaniards and 
foreigners. 

Although I have no necessity to enter into another discussion, and 
with this treaty, which is invoked by the distinguished Minister of For- 
eign Affairs of North America, I will prove conclusively that not one of 
the articles meets the question. I regret that your excellency has not 
examined the 11th article, which is as clear as light. I shall abstain 
from inquiring into other details, which will not have escaped the pene- 
tration of your excellency, such as the origin and motives of this treaty 
of peace, amity, limits, and navigation, between the two powers. It 
will be sufficient for my purpose to analyze the 11th article, which is 
considered as the support of the extravagant pretension of Mr. Miguel 
Drausin Harang, the son of Don Alejandro Harang, a Spaniard of the 
island of Porto Rico, under the laws and in the faith and religion of 
which he died. That oft-mentioned article says : " The citizens and 
subjects of each party shall have the power to dispose of their personal 
goods, within the jurisdiction of the other, by testament, donation, or 
otherwise ; and their representatives, being subjects or citizens of the 
other party,- shall succeed to their said personal goods, whether by tes- 
tament or ah intestato, and they may take possession thereof, either by 
themselves or others acting for them, and dispose of the same at their 
will, paying such dues only as the inhabitants of the country wherein 
the said goods are shall be subject to pay in like cases." Such is the 
first part of the said article — the only part which can be made to bear, 
even by a forced interpretation, on the question. Don Alejandro Ha- 
rang was a naturalized Spaniard, and consequently he could not, at the 
same time, have been a citizen of the United States, and have appealed 
to a treaty which applies only to citizens of the Union who might be in 
Seville or Cadiz as foreigners. 

If Don Alejandro" died a Spaniard he could not have been consid- 
ered as a citizen of the United States— that is evident ; nor could his 



CASE OP THE BLACK WARRIOR, ETC. 189 

heirs lay claim to rights other than those of their father. Moreover, the 
same article says, in the last sentence of the part already quoted, that 
if their heirs be subjects or citizens of the other contracting party, they 
shall succeed to their goods by testament, or ah intestato. They may 
take possession by themselves, or by others, and dispose of them at 
their will, without paying higher duties than the inhabitants of the 
country where the property inherited is situated would pay in similar 
cases. Now, Mr. Miguel Drausin Harang, son of Don Alexander 
Harang, is the son of a Spaniard. Spaniards pay, as duty of extrac- 
tion, alter five years of residence, fifteen per cent, on the amount of the 
property inherited which is taken away, according to the 15th article 
of the above-mentioned cedula. Even though that cedula had not been 
posterior to the treaty of 1795, your excellency will see, that if it be 
carried into effect towards Spaniards, citizens of the United States can- 
not require any thing but reciprocity ; and thusMr. Miguel Drausin Ha- 
rang complains in vain, evidently most unjustly. 

On my part, I would, if it were incumbent on me, request your ex- 
cellency to interpose your good offices with the supreme government of 
the Union, for the purpose of having that treaty executed according 
to its terms, as laid down in itself, without interruption of its text, 
leaving to each authority the full and complete exercise of its own 
attributes. This affair belongs to the courts of justice, according to 
the laws of Spain, and according to the very treaty cited, as clearly 
proved by the second part of the eleventh article, the terms of which 
are so direct and evident that they admit no doubt. That this may 
appear fully, I will copy that second part at length : " And in case of 
the absence of the heirs, such care will be taken of the goods as would 
be taken of the goods of a native in like case, until the lawful owner 
may take measures for receiving them. And if questions shall arise 
among several claimants to the inheritance, they shall be determined 
finally agreeably to the laws, and by the judges of the land wherein the 
said goods are. And when on the death of any person holding real 
estate within the territories of one of the contracting parties, such real 
estate would, by the laws of the land, descend to a citizen or subject 
of the other party, who should, as a foreigner, be incapable of holding 
it, he shall be allowed a reasonable space of time to sell the same, and 
to collect the proceeds without molestation, and exempt from all right 
of detraction on the part of the government of the respective States." 
" If questions shall arise," says the article, "between different claimants to 
the property left, they shall be decided finally according to the laws, 
and by the judges of the country wherein the property lies. One of 
the claimants to the inheritance of Don Alejandro Harang is the trea- 
sury, which requires, according to law, the sum of fifteen per cent, 
upon all the exisiting property of Don Alejandro Harang; exceptions 
to this claim must be urged before the Spanish courts, and they are to 
be decided according to the Spanish laws, which will be justly admin- 
istered. This has been actually done ; and the affair in question is now 
by appeal before the supreme court of the island, which will decide on 
it with due attention to all the treaties and orders now in force with 
regard to the matter." 



190 CASE OF THE BLACK WARRIOR, ETC. 

All which I transmit to you, Mr. Secretary of State, for your infor- 
mation and consideration, and I remain 

Your most obedient servant, 

PEDRO ALCANTARA D'ARGAIZ. 



Mr. Vail to Mr. Webster. 

[Extract.] 

Legation of the United States, Madrid, 

May 2, 1841. 

g IR .###*###* 

Our consul at St. John's, Porto Rico, and Mr. Michael Drausin Harang, 
a citizen of the United States, have applied for my intervention to ob- 
tain from the government here an order for the return of a sum of 
moriey levied by the colonial authorities as duties of detraction upon the 
proceeds of the estate of Mr. Harang's father, who died possessed of 
property in that island. While I was in the Department of State, the 
case was brought by Mr. Harang, in person, to the notice of the Sec- 
retary, who deemed it entitled to his official intervention. The know- 
ledge I then acquired of the circumstances of the case, has induced me 
to acquiesce in the request of the claimant, which I have done by ad- 
dressing to the Minister of Foreign Affairs the note of which a copy is 

enclosed. 

######## 

I am, sir, respectfully, 3 r our obedient servant, 

A. VAIL. 

Hon. Daniel Webster. 

Secretary of State of the United States, Washington. 



Mr. Vail to Mr. Be Ferrer. 

Legation of the United States, Madrid, 

April 27, 1841. 

The undersigned, charge d'affaires of the United States of America, 
has the honor to transmit to his excellency Don Joaquin Maria de 
Ferrer, First Minister of State and of Foreign Affairs of her Catholic 
Majesty, a paper recently received from the American consul at St. 
John's, in the island of Puerto Rico. From this paper, and from letters* 
accompanying it, it appeal's that the authorities of the island recognise 
the legality of a claim presented to them by Michael Drausin Harang, 
a citizen of the United States, for the return of a sum of money exacted 
of him, in contravention of existing treaties between the United States 
and Spain, as duties of detraction upon the proceeds of the estate of bis 
father, likewise a citizen of the United States, who died possessed of 
property in said island. It appears, further, that their refusal to refund 
the money rests on the ground that there do not exist in the archives of 



CASE OF THE BLACK WARRIOR, ETC 191 

the island copies of one of the treaties referred to, and of a certain 
royal order, mentioned in the enclosed paper ; and in consequence of 
this — although the legality of the claim is admitted on all hands — it 
seems that the case has, with all the documents, been referred by the 
colonial authorities to her Majesty's government at home. The under- 
signed, impelled by a sense of the wrong inflicted upon the claimant 
by the long detention of his property, feels it his duty to recommend 
the subject to the early attention of Mr. de Ferrer, and to request that 
directions may, as speedily as possible, be given to the authorities of 
Puerto Rico no more to delay the repayment of the money so unjustly 
demanded in the first instance, and the restitution of which has now so 
long and so injuriously been withheld. 

The undersigned avails himself of the opportunity to offer to his ex- 
cellency the renewed assurance of his most distinguished consideration. 

A. VAIL. 



Mr. Vail to Mr. Webster. 

[Extract.] 

[No. 31.] Legation of the United States, Madrid, 

July 24, 1841. 

Sir: * * * * * * * 

I have received an answer to my interposition in behalf of the claim 
of Michael Drausin Haran^. for the return of monevs demanded of him 
by the colonial government of Porto Rico, as duties of extraction upon 
the proceeds of property descended to him from his father, late a resi- 
dent of that island. I communicate a copy of Mr. Gonzalez's note, but 
not of the enclosure, though itself constituting the answer, because 
that document — a letter from the intendant of the island to the Spanish 
minister at Washington — will doubtless, by the latter, have been laid 
before you. A motive alleged for not granting to Harang's property the 
exemption from duty claimed by him under the treaty is, that his father 
had become a Spanish subject by naturalization ; and that, therefore, his 
estate was liable to the same charges as those of other Spanish sub- 
jects descending in the ordinary course of law. As the American 
citizenship of Harang, the father, was the only ground on which I 
rested my representation, and as I have no means of disproving or dis- 
puting the fact of his naturalization, I let the matter rest tor the present, 
having informed the claimant of the state of the case, and of my inten- 
tion to wait for further orders from your department. 



I am, sir, respectfully, your obedient servant, 

Hon. Daniel Webster, 

Secretary of State, Washington. 



A. VAIL. 



192 CASE OP THE BLACK WARRIOR, ETC. 

Mr. Webster to Mr. Vail. 
[Extract.] 

[No. 14.] Department of State, 

Washington, September 1, 1841. 

Enclosed you will find copy of a correspondence and of certain 
papers relating to the claim of Michael Drausin Harang and others, 
of Ponce, Porto Rico, upon the intendencia of that island, for " detrac- 
tion " of a sum of money due upon the sale of his late father's estate, 
the payment of which was enforced against him and his co-heirs by 
the intendente, contrary, as the claimants allege, to existing treaties 
between the respective countries. Under the impression that the colo- 
nial decision was rash, and with a view to lose no time in obtaining repa- 
ration for an injury supposed to have been occasioned by inadvertence, 
a letter was addressed to the Spanish minister here, stating the circum- 
stances, and asking his influence with the authorities of the island to 
prevail on them to re-examine the case, and to repair the alleged dam- 
age. After some delay, the Chevalier d'Argaiz replied, and enclosed 
the answer of the intendente on the subject of this claim. This answer 
has proved unsatisfactory to the parties, and you are now instructed, 
on the receipt of this dispatch, to bring the subject to the attention of 
her Majesty's government, which would have been done in the first 
instance, at the desire of the claimants, if the department had not be- 
lieved that the course that was adopted would have resulted in speedier 
justice. 

The facts are sufficiently explained in the accompanying papers to 
enable you to present the matter in a strong light at Madrid ; and 
believing the case to have been one of manifest injustice, it is not 
doubted that the home governmant will hasten, not only to remedy the 
evil originally done by the authorities of the island, but to make repa- 
ration for so long a delay in rendering justice to the parties. 

I enclose, for your further 'information, a statement of the case drawn 
up by Mr. M. D. Harang, who is now in Washington. 



Mr. Vail to Mr. Webster. 

[No. 48.] Legation of the United States, Madrid, 

November 2, 1841. 

Sir: I have been led, by the directions in your dispatch No. 14, 
into a closer examination, and, by the documents accompanying it, I 
am enabled to arrive at a clearer understanding than before of the 
claim of Michael Drausin Harang upon the colonial treasury of Puerto 
Rico. The circumstances set forth by the papers, and the law and 
arguments adduced against the claim by the colonial authorities, have 
raised strong doubts in my mind of the practicability, with the means 
within my reach, of a successful interposition in behalf of the claim 
upon the principles hitherto invoked in support of it. The circum- 
stances upon which the claim is founded appear to be these : 



CASE OF THE BLACK WARRIOR, ETC 393 

On the 10th of August, 181 5, a royal cedula, or decree of coloniza- 
tion, was issued, to encourage immigration and promote the settlement 
of the colony. It offered to all persons, Spaniards or foreigners, gra- 
tuitous grants of land, and certain advantages to foster their cultiva- 
tion; but it likewise imposed upon all settlers, Spanish and foreign 
equally, certain obligations, inherent to their character of colonists. 
Thus a continued residence of five years conferred upon the former 
the quality of Spanish subjects, and of course imposed upon them the 
corresponding obligations. It granted to all, without distinction of 
origin, who might die without heirs, the right of bequeathing their 
property to relatives and friends, who, if they chose to reside in the 
colony, were to enjoy the same privileges as the original grantees ; 
otherwise the land itself was to revert to the crown, and the legatees were 
at liberty to withdraw from the colony such part of the inheritance as 
had been acquired by the grantee during his residence therein, but on 
payment of a duty of extraction, whether the grantee had been of 
Spanish or foreign origin, of ten per cent, if his residence had been of 
five years, and fifteen per cent, if over. 

Now it appears from Mr. Michael Drausin Harang's own statement, 
that it was in consequence of the inducements held out by the cedula 
that his father removed to, and established himself in, the colon}'-. If 
he thereby accepted the benefits of the law, he, as a matter of course, 
according to the argument of the Spanish authorities, which must be 
allowed to have great force, assumed likewise its obligations. Thus, 
after a five-years' residence he became a Spanish subject ; and thus 
the property acquired by him became chargeable with the duty of ex- 
traction specifically provided ; and all this in consequence of a volun- 
tary and deliberate act of his — a species of agreement between him 
and the Spanish government. 

If by this act Mr. Harang's father divested himself of his American 
citizenship, and placed his property beyond the pale of the protection of 
the United States, can the provisions of the treaty be invoked in the 
case ? I am unable, without other information than that now in my 
possession, to arrive at any but a negative solution of that question, 
which, however, with all deference, I submit for your consideration. 

In case the foregoing view of the subject should not prove the cor- 
rect one, or if the claimant should be able to present his case in a light 
which would bring it clearly within the purview of the treaty, I would 
ask you to consider whether, under its provisions, exemption from the 
duty of detraction can be demanded for the proceeds of any other than 
real property. 

As my dispatch No. 31, with the negative answer of the Spanish 
government to the application made in the case, will have reached 
your department since the date of your No. 14, I will, before I move 
further in the matter, await your ulterior directions on that and the 
present communication. 

I am, sir, with great respect, your obedient servant, 

A. VAIL. 

Hon. Daniel Webster, 

Secretary of State of the United States, Washington. 
13 



194 CASE OF THE BLACK WARRIOR, ETC 

Mr. Webster to Mr. Vai 

[Extract.] 

[No. 16.] Department of State, 

Washington, January 31, 1842. 

* * * # # ■ # 

A copy of that part of your dispatch, No. 48, which relates to Mr. 
Harang's claim, will be communicated to him ; and anything further 
that the parties interested may have to offer will be transmitted to you. 
If the view taken by the intendente of Porto Rico be confirmed by the 
Spanish government, the claimants, unless able to set their case in a 
new light, will have to look to, and abide by, the decision of the tribu- 
nals of the island. Your No. 31 upon this subject has not yet reached 
the department. 

Your dispatches Nos. 55 and 56 have been received.] 

I am, sir, respectfully, your obedient servant, 

DANIEL WEBSTER. 
Aaron Vail, Esq., 

Charge aV Affaires of the United States, Madrid. 



Mr. Webster to Mr. Irving. 

[Extract.] 

[No. 4.] Department of State, 

Washington, July 30, 1842. 
Sir : Enclosed is a copy of a letter from M. D. Harang, dated at 
New Orleans on the 5th instant, the subject of which you will under- 
stand by referring to the correspondence on it in your legation, espe- 
cially to dispatches, Nos. 14 and 16, to Mr. Vail, and to his dispatch, 
No. 48, to this department. As soon as convenient, after the receipt of 
this communication, you will address the Spanish government again 
upon the claim of Mr. Harang, and do all in your power to procure a 

favorable decision from it.. 

* # # # # * 

Washington Irving, Esq., #*c, fy c - 



Mr. Irving to Mr. Webster. 



[Extract.] 



[No. 4.] Legation of the United States, Madrid, 

October 8, 1842. 

Sir : I had the honor to receive, on the 12th ultimo, dispatch No. 
4 from the department, enclosing a copy of a confidential letter of the 
Captain Genera] of the island of Cuba, and from Mr. M. D. Harang, 



CASE OF THE BLACK WARRIOR, ETC 195 

dated at New Orleans, on the subject of his claim upon the Spanish 
government. 

In relation to the latter I made an informal application to the Office 
of State for a copy of the royal decree under which the authorities of 
Porto Rico acted ; and soon after I had procured it, I addressed, on the 
24th September, a note to Count Almadora, Minister of State, of which 
the enclosed is a copy. To this I have, as yet, received no answer. 
After a careful examination of the treat}' of '95, and the provisions of 
the decree above referred to, it appears to me very doubtful whether 
the case of Mr. Harang can be supported under the stipulations of the 
treaty ; still, the reasons heretofore assigned by the Spanish govern- 
ment for then- refusal to make restitution do not appear to have much 
force, and are mainly on the presumption that Harang, the father, was 
a naturalized subject of Spain; of which no proof is adduced, and 
which is totally denied by his heirs. 



[Enclosure.] 



Legation of the United States, Madrid, 

September 24, 1842. 

The undersigned, envoy extraordinary and minister plenipotentiary 
of the United States, has the honor to call the attention of Count Alma- 
dora, First Minister of State and of Foreign Affairs of her Catholic Ma- 
jesty, to the case of Mr. Michael Drausin Harang, an American citizen, 
w^hich has ahead}- been the subject of correspondence with her Ma- 
jesty's government. 

It appears that Luis Alexander Harang, the father of the applicant, 
was a native of Louisiana, and citizen of the United States. In con- 
sequence of royal cedula, or decree, of 10th August, 1815, holding 
out inducements to foreigners as well as Spaniards to settle in the 
island of Porto Rico, by offers of gratuitous grants of land, and various 
privileges, he removed to that island, purchased land there with the 
funds which he had brought with him, cultivated, with his own means 
and industry, a sugar plantation ; and, after having amassed consider- 
able property, died at New York in 1815, bequeathing his propertv 
amoug his children. 

After his death his son, Michael Drausin Harang, in his own behalf, 
and in virtue of a power of attorney from his co-heirs, sold the property 
lying and being in the island of Porto Rico, with the intention of con- 
veying the proceeds out of the island, when the intendente interfered 
and exacted a dcrccho de extraction, or duty of exportation of 15 per 
cent., upon the gross amount of the sales ; the proceeds of which duty, 
amounting to near eleven thousand dollars, were gathered into the royal 
treasury. 

Against this exaction Michael Drausin Harang protested; his father 
having been a citizen of the United States, and his property, bequeathed 
to his heirs, exempted from all derechos dc extraction, according to the 
eleventh article of the treaty of 1795. 

The intendente maintained the justice of the exaction by alleging 



196 CASE OP THE BLACK WARRIOR, ETC 

that Luis Alexander Harang, in accepting the royal cedula of August 
10, 1815, and its benefits, subjected himself to its consequences, among 
which was this duty of extraccion of 15 per cent, on any property he 
might devise ; and further, that in becoming a naturalized subject of 
Spain he forfeited the protection of the eleventh article of the treaty of 
1795, which only extended to citizens of the United States. 

At this point the matter rested when last brought before this govern- 
ment. 

In reply, Michael Drausin Harang observes that his father, Luis Al- 
exander Harang, when he migrated to the island of Porto Rico, never 
accepted the royal cedula — that is to say, the grants and benefits held 
out in it as a lure to colonists ; and in not accepting these, he did not 
subject himself to "all the consequences" of that decree. 

The most prominent inducement held out in that cedula was the 
gratuitous grant of land to any Spaniard or foreigner who would settle 
on the island and cultivate it; the said land to be assigned out in por- 
tions according to the number of colonists' families, and his slaves; 
and the assignment to be entered into the register of population, with 
the name of the colonist, the day of his admission, the number of the indi- 
viduals of his family, &c. Luis Alexander Harang neither asked nor 
received any such grant of land. Had he done so, a record thereof 
would exist in the register of population, and an authenticated copy of 
it would no doubt have been produced by the intendente to support his 
assertion. But no such record exists. Mr. L. A. Harang purchased 
land with his own funds which he had brought with him; he cultivated 
and improved it at his own expense, and by his unassisted means and 
industry. So far, therefore, from being a. beneficiary of the royal or 
colonial government, and, of course, subject to pay for the benefits re- 
ceived, he was, in this respect, a benefactor of the island. 

Then, as to his being a naturalized subject of Spain : The article 
twelve of the royal cedula says : " The first five years of establishment 
of foreign colonists in the island being past, and they then obliging them- 
selves to remain permanently on it, all the rights and privileges of naturali- 
zation will be conceded to them, as well as to the children they have 
brought with them, or which may have been born in the island, that 
they may consequently be admitted to the honorable employs of the 
republic and the militia," &c. 

Now, Mr. Michael Drausin Harang declares that his father never, 
either at the time of his arrival at the island, or during his residence 
there, did or contemplate any act to divest himself of the character 
of a citizen of the United States, or to acquire the character and rights 
of a naturalized subject of Spain. This point, on which the intendente 
rests the main stress of his justification, ought to have been substanti- 
ated b} r documentary evidence. The mere evidence in the island for 
any number of years could not make him a Spanish subject, without 
some overt act or declaration on his part ; nor could the royal offer of 
naturalization render its acceptance obligatory; a specific formality 
was necessary — the declaration of an intention to remain permanently in 
the island. If such declaration had been made for the purpose of 
obtaining naturalization, some record of it must exist, and ought to 
have been produced to maintain this vital ground of defence on the 



CASE OF THE BLACK WARRIOR, ETC 



197 



part of the intendente. No such proof is furnished, and Mr. Michael D. 
Harang declares that the archives of the secretaria of the island of Porto 
Rico have been diligently searched, but no evidences of his father's 
naturalization, or even domiciliation, can be found. In fact, he went 
to the island merely at the time when the decree of August 10, 1815, 
threw the door open to foreigners ; he availed himself of the general 
license of the decree, without accepting its specific grants and bene- 
fits, and incurring the consequent obligations. He lived and died a 
citizen of the United States ; and, as such, his heirs claim for the estate 
the right secured by the following paragraph of the eleventh article of 
the treaty of 1795 : " And where, on the death of any person holding 
real estate within the territories of the one party, such real estate would 
by the laws descend on a citizen or subject of the other, were he not 
disqualified by alienage, such subject shall be allowed a reasonable 
time to sell the same, and to withdraw the proceeds without molesta- 
tion, and exempt from all rights of detraction on the part of the govern- 
ment of the respective States." 

The government of the United States, maturely examining the case, 
are of opinion that the duty of fifteen per cent, has been wrongfully 
exacted on the property of the deceased, Luis Alex. Harang, a citizen 
of the United States, and ought to be refunded, with damages for de- 
tention, to his heirs. They are convinced that her Majesty's govern- 
ment will concur with them in this opinion when they have investigated 
the case ; and they have instructed the undersigned to use his utmost 
exertions in procuring a speedy adjustment of a claim where so much 
injury has been caused by delay. 

The undersigned avails himself of this occasion to renew to Count 
de Almadora the assurances of his distinguished consideration. 

WASHINGTON IRVING. 



Mr. Irving to Mr. Webster. 

[Extract.] 

TNo. 5.1 Legation of the United States, Madrid, 

November 5, 1842. 

******** 

I enclose likewise a note from Count Almadora received in reply to 
my application in favor of the claim of Michael Drausin Harang ; a 
reply which, according to the slow process of Spanish investigations, 
does not promise a speedy decision of the question. 



[Translation of a note from the Secretary of State of Spain.] 

Chief Department of State, 

Palace, October 22, 1842. 

Sir: It being shown to this department that a claim is now pending 
in the courts of Puerto Rico, advanced by Michael Drausin Harang 



198 CASE OF THE BLACK WARRIOR, ETC 

for the restitution of $10,978, which were exacted from him as duties 
of extraction to a foreign country on the estate of his deceased father, 
L. Alexander Harang, to which your letter of the 24th of September 
refers, I have ordered that the necessary information should be obtained 
on the subject ; and so soon as it has been received, I shall have the 
honor to reply to your above-mentioned note. I avail myself of this 
occasion to renew to you the assurances of my distinguished consid- 
eration. 

COUNT DE ALMADORA. 
Hon. Washington Irving, 

Envoy Extraordinary and Minister Plenipotentiary, Sfc. 



Mr. Calhoun to Mr. Irving. 

[No. 31.] Department of State, 

Washington, April 30, 1844. 
Sir: Since the receipt of your dispatches Nos. 4 and 5, no informa- 
tion has been received from your legation on the subject of the claim 
of M. D. Harang. You will, on the receipt of this dispatch, take an 
early occasion of renewing the subject, and endeavor to obtain a final 
decision, agreeably to the promise made by the Minister of Foreign 
Relations, in reply to your note renewing the claim under instructions 
from this department. 

I am, sir, respectfully, your obedient servant, 

J. C. CALHOUN. . 
Washington Irving, Esq., fyc, fyc, fyc, Madrid. 



Mr. Calhoun to Mr. Irving. 

[Extract.] 

[No. 32.] Department of State, 

Washington, May 29, 1844. 

Sir: At the request of M. D. Harang, I enclose, herewith, certain 
papers respecting his claim upon the government of Spain, and refer 
you to my dispatch No. 31, dated on the 30th ultimo, for instructions 
on the subject. 



Mr. Irving to Mr. Calhoun. 

[Extract.] 

[No. 45.] Legation of the United States, Madrid, 

June 24, 1844. 

Sir: I have the honor to acknowledge receipt of dispatch No. 31, 
recalling my attention to the claim of Michael Drausin Harang. I 



CASE OF THE BLACK WARRIOR, ETC 199 

have not lost sight of this claim since my correspondence with the 
Spanish Secretary of State on the subject in September, 1842, but 
have not been able to procure any other reply to my inquiries than 
that the government was waiting for information on the subject. 

I have now addressed the Marques de Viluma, and hope the reply 
may be more explicit. It is difficult to give any view, however, of the 
delays and evasions to which all applications of the kind are at all 
times subjected in the Spanish offices, and more especially in the pres- 
ent agitated and revolutionary. times. I believe, in general, I have 
fared better in my negotiations with the Spanish government than most 
of my colleagues, some of whom complain bitterly that their personal 
applications are unavailing and their letters unanswered. 



Mr. Irving to Mr. Calhoun. 

[Extract.] 

(No. 48.] Legation of the United States, Barcelona, 

July 14, 1844. 

******** 

The documents which you forwarded relative to the claim of Michael 
Drausin Harang throw no new light on the case, which was discussed 
by me, to the best of my judgment, in a note passed to the Spanish gov- 
ernment on the 24th of September, 1842, a copy of which was sent to 
your department. I was informed yesterday that I should soon receive 
a written answer on the subject. 



Mr. Irving to Mr. Buchanan. 

[Extract.] 

[No. 71.] Legation of the United States, Madrid, 

August 23, 1845. 
Sir: I have the honor to acknowledge the receipt of dispatch No. 
47, with its enclosure. 

I transmit herewith a copy of a note addressed to Mr. Martinez dela 
Rosa, concerning the long pending case of Michael Drausin Harang; 
also a note to Mr. Alexander Mon, Minister of Finance, relative to the 
nullification of the Cuba decree. The reply of Mr. Mon, herewith sent, 
states that the matter is undergoing investigation — a usual reply with 
the Spanish government when pecuniary indemnity is required. 
***##*#* 
Hon. James Buchanan, 

Secretary of State. 



200 case of the black warrior, etc 

Legation of the United States of America, Madrid, 

August 12, 1845. 

Sir : It is with much regret that I find myself again obliged to urge 
the action of her Majesty's government in a case long since and re- 
peatedly presented for its consideration. I allude to the case of 
Michael Drausin Harang, a citizen of the United States, claiming the 
restitution of several thousand dollars, wrongfully exacted by the in- 
tendente of the island of Porto Rico from the proceeds of the sale of the 
estate of Luis Harang, deceased, under the title of derechos de extrac- 
tion, and in contravention of treaties existing between the United States 
and Spain. 

The claimant, who represents the heirs of the deceased, first at- 
tempted, many years since, to get redress from the tribunals of the 
island, bat was put off with the declaration that the case, with all its 
documents, had been referred to her Majesty's government at Madrid. 
To her Majesty's government, therefore, he addressed himself, through 
my predecessor, Mr. Vail, but with no better success ; so that, on my 
taking charge .of this legation, I found the claim among the matters 
especially charged by my government upon my attention. 

I accordingly addressed a note, on the 24th of September, 1842, to 
Count Almadora, then Minster of State and of Foreign Affairs, giving 
a full statement of the case, and complaining of the delay that had 
already occurred in its adjustment. Count Almadora, in reply, ob- 
served that, finding the claim pending before the tribunals of Porto Rico, 
he had inquiries made into the matter, the results of which he would 
communicate to me. 

A year and eight months elapsed without my receiving any further com- 
munications from her Majesty's government on the subject. I therefore, 
on the 16th of June, 1844, addressed a note respecting it to his excellency 
the Marquis of Viluma, then Minister of State. He retired from office 
before he had time to reply. I made a verbal representation of the 
case to General Narvaez, who held the office ad interim. With his 
characteristic promptness, he wrote me a note, dated the 20th of July, 
informing me that on the same day the Minister of Finance had been 
written to with urgency, for information in the premises, and that as soon 
as he should receive such information he would send me an explicit 
answer. I was also assurred, about the same time, at the Department 
of State, that a reply was actually in the course of preparation. Gen- 
eral Narvaez, however, ceased to have charge of the Department of 
State ; and with his relinquishment of it apparently ceased all further 
attention to this case — the promised reply having never been provided 
to this legation, nor any other communication made, on the subject by 
her Majesty's government. 

Thus for nearly ten years has this claim been in a manner bandied 
backward and forward between the colonies and the mother country, 
and between tribunals and departments. Answers have been promised 
to this legation, but have never been sent ; and there would seem to be 
a disposition to evade all definite action in the case, and tacitly consign 
it to oblivion. 

The respect, however, which this legation owes to itself and to the 
government which it represents, will not permit it passively to acqui- 



CASE OF THE BLACK WARRIOR, ETC 201 

esce in such inattention to a matter which has so repeatedly been the 
subject of earnest communication ; and I now most respectfully, but 
urgently, claim from her Majesty's government that explicit answer on 
the case which has so long been promised. 

I have the honor to be, with high consideration, your excellency's 

obedient servant, 

WASHINGTON IRVING. 

His Excellency Mr. F. M. de la Rosa. 



Legation of the U. S. of America, Madrid, 

August 9, 1845. 

Sir : Your excellency cannot but be fully aware of the serious losses 
sustained by citizens of the United States, who made heavy shipments 
to the island of Cuba in the course of last winter, on the faith of a 
decree of the supreme authorities of the island, admitting certain articles 
free of duty for the space of three months, but who found their mer- 
chandise, on its arrival, subjected to the old duties, in consequence of 
an act of her Majesty's government, carried into effect in the interim, 
and without due notification, annulling the aforesaid decree. 

The government of the United States, keenly alive at all times to 
everything which may affect the rights of its citizens and disturb the 
harmonious relations of the two countries, could not but be deeply 
aggrieved by an irregular act, which took the confiding American mer- 
chant by surprise, and was calculated to impair that confidence and 
security in commercial intercourse, which it is the interest of both gov- 
ernments to sustain inviolate. 

I received instructions from my government, therefore, to make 
urgent remonstrances against this irregular proceeding on the part of her 
Majesty's government, manifestly unjust in itself, and in contradiction 
to the commercial usages prevalent among enlightened nations. I was 
instructed, furthermore, to say that the government of the United 
States felt confident that prompt and efficacious measures would be 
taken by her Majesty's ministers to redress the wrongs thus occa- 
sioned, and I was instructed to intimate, that, in the opinion of the 
President of the United States, those citizens who had imported any of 
the articles embraced in the decree into the Havana between the 20th 
of February and the 7th of April, 1845, without knowledge, at the time 
of their departure from the United States, that the decree had been 
annulled, were entitled to be indemnified by the Spanish government 
for the losses they had sustained. 

I accordingly, on the 15th June last, addressed a note to the foregoing 
purport, to his excellency Mr. Francisco M. de la Rosa, her Majesty's 
First Minister of State, and I trusted that the gravity of the case, the 
obvious justice of the claim presented, and the importance attached to 
it by the government of the United States, would have procured instant 
and satisfactory attention to my communication. It is with surprise 
and regret, therefore, that I find nearly two months suffered to elapse 
without the least notice being taken of my note, and without even the 
receipt of it being acknowledged. 



202 CASE OF THE BLACK WARRIOR, ETC. 

To address a second note to the Minister of State appears to me, 
under present circumstances, useless. If he suffered the first to lie un- 
regarded, when he was present in the capital, it is not likely he would 
pay more attention to a second, now that he is attending her Majesty 
in the distant provinces. 

Under these circumstances, and knowing the earnestness with which 
my government looks for a speedy adjustment of this matter, I have 
deemed it expedient to press it upon the attention of your excellency. 
I will merely observe that it is a case in which nothing is gained by 
delay; on the contrary, it grows in importance under silence and 
neglect, so that an act which, if promptly remedied, might be palliated 
as the unintentional result of hurry or inadvertency, may be tacitly 
aggravated into a serious cause of offence. 

I have the honor to be, with high consideration, your excellency's 
obedient servant, 

WASHINGTON IRVING. 

His Excellency Alexander Mon, 

Minister of Finance. 



[Translation.] 

Madrid, August 13, 1845. 
Sir : I have the honor to acknowledge the receipt of your note of the 
9th instant, and, as the business to which it refers is actually undergo- 
ing investigation, (pendiente de instruction,) the resolution which may 
be formed concerning it will be duly communicated to you through the 
regular channel of the Department of State, without more delay than 
is necessary. I have the honor to reiterate, &c, &c, 

A. MON. 



Mr. Buchanan to Mr. Saunders. 

[Extract.] 

[No. 17.] Department of State, 

Washington, December 6, 1847. 

* * * # # # 

My present object is to call your special attention to the claim of M. 
D. Harang, respecting which ample instructions were transmitted to 
Mr. Vail in 1841, and to your predecessor, accompanied by documents 
and papers connected therewith. These will be found on file in your 
legation. You will discover that no reply has ever been given to a note 
of Mr. Irving, of the 12th August, 1845, representing the claim of Mr. 
Harang in very strong language, and urging upon the then Minister for 
Foreign Relations the necessity of a decision upon it. Since Mr. 
Irving quitted the mission, the subject does not appear to have re- 
ceived any attention. 

****** 

You will, as early as practicable after the receipt of this dispatch, 
remind the Spanish government that the letter of Mr. Irving, above 



CASE OF THE BLACK WARRIOR, ETC. 



203 



referred to, remains unanswered, and will, at the same time, take oc- 
casion to urge a prompt and favorable decision upon the claim. 

I have not, at present, leisure to look carefully into this case, and 
therefore express no opinion upon its merits, or the amount of indem- 
nification that ought to be demanded. This examination will devolve 
uDon you, with the advantage of all the evidence before you, fur- 
nished at various periods by the parties themselves, who will, doubt- 
less, cheerfully supply you with any additional information or papers 
which they or yourself, after examination, may deem useful or neces- 
sary ; and will correspond directly with you on the subject. 

I am, sir, respectfully, your obedient servant, 

F J JAMES BUCHANAN. 



Mr. Saunders to Mr. Buchanan. 

[No. 29.] Legation of the United States, Madrid, 

February 8, 1848. 

Sir : I have the honor to acknowledge the receipt of your dispatch 
No. 17, with its enclosures, calling my " special attention" to the 
claim of M. D. Harang. As the counsel for the claimant seems to be 
laboring under some misapprehension as to the attention given to the 
claim by this legation, and to afford you some idea of the difficulties 
and delays which have to be encountered in all cases involving a pecu- 
niary demand against this government, I take the liberty of giving you 
a brief recital of what has transpired in regard to this particular case. 

The claim was first presented to the minister here by Mr. Vail, in 
April, 1841. In September, 1842, Mr. Irving renewed the application, 
giving, at the same time, a fall and accurate statement of the facts in- 
volved in the case, with a reply to the grounds taken by the intendente 
of Porto Rico in support of his proceedings, in which he denied that 
Alexander Harang had ever been a naturalized citizen of Porto Rico, 
or that he had done anything to bring him within the operation of the 
royal decree of August, 1815. In June, 1844, he addressed a note 
to the minister, requesting to be furnished with certain information which, 
it appears, had been called for from the authorities at Porto Rico. 
Again, in August, 1845, Mr. Irving addressed a strong note to the 
minister, complaining of the delay, and urging, in the most pressing 
manner, the necessity of an early decision. Finally, in June, 1846, a 
few weeks before his departure, he again urged upon the minister, in 
the most earnest terms, that he should give some definite reply. In the 
dispatch to the department, No. 82, which followed, he states he had 
learned the case was then before the " royal council," for final ad- 
judication. In this situation I found the claim when I succeeded to the 
business of the legation. I certainly did not feel myself called upon 
to do anything until such time should elapse as might be sufficient to 
enable a Spanish council to come to a conclusion. I had revived and 
pressed one or two other cases, with as little success as my prede- 
cessors. On inquiry, I find an answer had been received from the 
ministry of State, a' short time before my return from France, which 
had been filed by the Secretary, and had escaped our attention until 



204 CASE OF THE BLACK WARRIOR, ETC. 

the receipt of your dispatch. But as the decision is not final, I pre- 
sume nothing will be done by the authorities at Porto Rico before 
informing the parties interested. As the matter now stands, I do not 
see what further can be done here, unless I shall be furnished with some 
new matter, to ask for a reconsideration. That you may understand 
the grounds of the decision, so as to direct the attention of the council 
to the points on which it is made to rest, I herewith enclose a copy, and 
shall await your further directions. 

I am, sir, yours, respectfully, 

R. M. SAUNDERS. 
James Buchanan, Esq., 

Secretary of State. 



[Translation.] 

Chief Department of State, 

Palace, September 7, 1847. 

Sir : With respect to the various communications made to this de- 
partment by the legation of the United States, praying that Mr. Drau- 
sin Harang, a subject of that republic residing in Porto Rico, should be 
exempted from paying the duty of extraction on the property inherited 
by him from his deceased father, and that the sum of $10,978 exacted 
from him with that object should be repaid, I have the honor to inform 
you that a communication has been addressed to me by the Treasury 
Department, being a copy of the resolution (or order) on this subject 
given to the intendente of Porto Rico. 

Agreeably to this resolution, (or order,) it appears clearly that, ac- 
cording to the testament and codicil of Mr. Harang, he was natural- 
ized. In the treaty concluded in 1795 between Spain and the United 
States, it is established that the subjects of either power may freely 
dispose of the property possessed by them in the territory of the other, 
as well as their heirs, agreeably to a will or ab intestato, without pay- 
ing other duties than those which the natives of the country would 
have to pay, declaring them free from the duty of retention ; but as this 
latter duty is not now in question, the duty of extraction being that con- 
cerning which the present resolution is given, to the payment of which 
all persons who carry property out of Porto Rico are subject, even 
though they be Spaniards and colonists of the island, as well as their 
children and heirs, in virtue of the royal cedula of August 10, 1815, 
now in force, and confirmed by the treaty between Spain and the 
United States of October 27, 1819, the claim of Mr. Drausin Harang 
is not founded in justice. Accordingly, by agreement with the report 
of the assessor of the superintendency, and of the united sections of the 
State, grace and justice, treasury and the colonies, the acts and other 
documents annexed relating to this case are returned by the Treasury 
Department to the intendente of Porto Rico, in order that the superin- 
tendent, sub-delegate, and superior board of treasury of that Island 
may determine what they consider just, until the case be terminated. 
I avail myself of this occasion, &c. 

ANTONIO CABALLERO. 

To the Acting Charge d'affaires of the United States at Madrid. 



CASE OF THE BLACK WARRIOR, ETC 205 

Mr. Saunders to Mr. Clayton. 
[Extract.] 

[No. 50.] Legation of the United States, Madrid, 

July 7, 1849. 

I have received from Mr. Charles De Selding, the attorney for the 
heirs of Harang, sundry documents in support of their claim on the 
Spanish government, and as these proofs change, in some degree, the 
nature of the demand in favor of the claimants, I shall lose no time in 
taking the necessary steps for reviving the claim, and, as I trust, with 

more success. 

***** 



Mr. Saunders to Mr. Clayton. 

[Extract.] 

[No. 51.] Legation of the United States, Madrid. 

September 25, 1849. 

#*#***## 

I also submit copies of the correspondence relative to the claim of 
Michael Drausin Harang ; from which you will see the matter has 
assumed a question of importance, not so much from the amount involved 
as from the construction given to the 11th article of the treaty of 1795, 
a construction which, as I humbly conceive, is not warranted either by 
the intent or letter of the treaty. As I considered it a matter of im- 
portance to have the question decided, and believed it not likely that the 
claimants would ever receive anything without some arrangement of 
the kind, I was induced to submit the proposition as contained in my 
note of the 26th of July. The claim of Mr. D. Harang stood rejected, 
without the smallest probability of its being reconsidered. The claim 
of Madame de Viar had been presented by my predecessor — had been 
again and again urged by him, and revived by myself, under special 
instructions from the department, to which no answer had ever been 
given. I considered it time to close the matter in some way. I was 
further induced to submit th,e proposition, from the belief that if ac- 
ceded to by the government here, and approved of by the President, it 
might facilitate the appropriation by Congress for the settlement of the 
" Amistad case." This question, as you are aware, has already excited 
some feeling; and as the appropriation has been three times recom- 
mended by the President and refused by the House, it is likely to em- 
barrass the legation here, unless the appropriation shall be made at the 
next session of Congress. It is a matter of importance, too, that those, 
who have made investments in real estate in the island of Cuba, which, 
as I understand, are considerable, and which have been made under 
the impression they were protected by the treaty, should know whether 
the interpretation of the royal council is to be sustained. The question 



206 CASE OF THE BLACK WARRIOR, ETC. 

is now altogether one of construction, as the facts are no longer in 
dispute. If the government has the right to levy this duty of 15 per 
cent., under the title of " derechos de extraccion," then one thing is 
certain — they are more likely to increase than to lessen it. But as I 
was unable to obtain any answer to my note, I felt constrained by a 
sense of self-respect to withdraw the proposition. Indeed, after my 
note of the 20th of August, I had no alternative but to adopt that course 
or to suffer the matter to rest, which I could not think of doing. The 
proposition had been made on my own responsibility, and, as I thought, 
I was entitled, as an act of common courtesy, to an answer. I know 
that Mr. Irving had addressed two very strong notes of remonstrance to 
the minister in this very case of Harang, and had been unable to com- 
mand even an acknowledgment, and I considered it time to let them 
know that such gross inattention was not to be submitted to. Indeed, 
this very case of Harang strongly illustrates their manner of doing 
business, and what the foreign minister (it is not confined to one case 
alone) had to encounter in his intercourse with them. The case had 
been pending for ten years; notes of argument, of complaint, and of 
angry remonstrance had been repeatedly addressed to the different 
Ministers of Foreign Affairs, without receiving any other attention than 
the mere verbal answer that the matter was pending before the royal 
council; and after this long deliberation, they announce a decision 
which, if correct, should not have required twenty-four hours. Under 
these circumstances I felt fully justified in the steps I have taken. 
But as the minister has at length found time to answer, in which, as 
you will see, he declines the proposition, it will be for the President to 
decide what further is to be done in regard to the matter. Mr. Barrin- 
ger will, of course, await your instructions on the subject. 



Legation of the United States, Madrid, 

July 10, 1849. 

Sir: I have to call the attention of your excellency to the case of 
Michael Drausin Harang, and to the decision of the royal council, re- 
jecting his claim, as notified by his excellency Don Antonio Cabellero, 
in his note to me of the 7th September, 1847. The claimant, when in- 
formed of this decision, complained of its injustice, as being in conflict 
with the treaty of 1795, but was unable until the present time to furnish 
the necessary documents to enable me to call the attention of your 
excellency to the subject, and to ask a reconsideration of the matter. 
These proofs I beg now to submit to the consideration of your excel- 
lency, from which it will be seen that the decision is clearly erroneous, 
and by which great injustice has been done to the claimant. 

It appears that Luis Alexander Harang, the father of the present 
claimant, a citizen of the State of Louisiana, was induced to remove, 
about the year 1818, and to settle in the vicinity of Ponce, in the island 
of Porto Rico ; that he there acquired real estate and other property of 
considerable value, where he continued to reside until the year 1835, 
when he returned to the city of New York, where he died in that year. 



CASE OF THE BLACK WARRIOR, ETC 207 

That before his death he had made his testament, by which he devised 
his estate in Porto Rico to Michael Drausin Harang and his other chil 
dren, all at the time citizens of the United States ; that the claimant 
having disposed of a part of the estate with the view of removing it to 
the United States, was forced to pay to the intendente of the island of 
Porto Rico the sum of near $11,000, as a tax or duty on export, which 
tax the claimant submits he was not liable to pay, and therefore claims 
to have refunded. 

From the decision of the royal council, as communicated to me by his 
excellency Don Antonio Caballero in his note of the 7th September, 1847, 
it appears the royal council has treated it as a case of the removal of 
" personal goods" from the island ; and being within the jurisdiction of 
her Majesty's dominions, the owner, though a foreigner, became liable 
to pay the same dues as the inhabitants of the country in like cases. 
This certainly would be so in the case of "personal goods," according 
to the 11th article of the treaty of 1795; but, as your excellency will 
see by adverting to the same article of the treaty, it is expressly pro- 
vided in regard to real estate, that the devisee, when a citizen or subject 
of another country, shall be allowed a reasonable time to sell the same 
and to withdraw the proceeds without molestation, and exempt from all 
rights of detraction on the part of the government. It is for the viola- 
tion of this provision of the treaty by the intendente of Porto Rico, in 
exacting the tax of which Michael Drausin Harang complains, and it is 
for the confounding real estate, with that of "personal goods" by the 
royal council, in its decision, in which the error has been committed, and 
which the claimant now respectfully asks may be reconsidered, and that 
justice done him which has so long been withheld. Your excellency is 
too sound a lawyer to render it necessary for me to point out the 
marked distinction between real estate and personal goods, the sound 
policy on which that distinction rests, and which is so clearly recog- 
nised by the 11th article of the treaty of 1795 ; nor is it necessary for 
me to urge upon your excellency the importance of having this pro- 
vision of the treaty observed between two countries who have hitherto 
respected its obligations with such good faith. I feel it only necessary 
for me to call your excellency's attention to the facts of the case, to sig- 
nify my protest against the decision of the royal council, as in conflict 
with the treaty of 1795, and respectfully, but most earnestly, to solicit a 
reconsideration of the question, so that justice and right may be done. 

I beg to renew to your excellency assurances of my distinguished 
consideration. 

R. M. SAUNDERS. 

His Excellency Pedro Jose Pidal, Sfc, 6fc, fyc. 



[Translation.] 

First Department of State, 

At the Palace, July 14, 1849. 

Sir : I have received your note of the 10th instant, in which you 
have been pleasecl to renew the demand for a return of the duties of 



208 CASE OF THE BLACK WARRIOR, ETC. 

detraction, levied in Puerto Rico, on the sale of the real estate of M. 
Drausiu Harang, inherited by his sons, who are American citizens. 
You accompany that note with the proofs that Mr. Luis Alexander Ha- 
rang was also an American citizen, although it appears at the same 
time that he was subsequently naturalized in Puerto Rico, and, more- 
over, that the papers of sale of the property which he possessed in that 
island were authorized by his son, Michael Drausin Harang, lor him- 
self, and in the name of his brothers, who had given him full powers 
for that object. 

You assume that the royal council has confounded the regulations 
applicable to personal property with those relative to real estate ; and 
you assert that, according to the 11th article of the treaty of 1795, per- 
sonal property alone is subject to the duty of 15 per cent, of detraction, 
and that real estate is exempt from all duty. 

Permit me to rectify the interpretation which you give to the article 
in question. In that article I do not find the distinction which you 
would establish between real and personal estate. When it is said 
that the subjects and citizens of both countries shall have power to dis- 
pose of their personal property, this word is not placed in contradistinc- 
tion to real estate, for in that case the word would have been moveable 
property. In no form can it be admitted that personal property is sy- 
nonymous with moveable. Personal property comprehends both real 
estate and movable property that may belong to the individual in ques- 
tion. 

Respecting these descriptions of property in general, the article stip- 
ulates that the heirs, although they may be foreigners, shall succeed to 
the testator, without paying greater duties than those paid by the natives 
of the country in similar cases where the inheritance is established. 

In the last paragraph of the article it is stipulated, that " if by 
the death of any person possessing real estate in the territory of one 
of the contracting parties, this real estate should pass, according to the 
laws of the country, to a subject or citizen of the other party, and if 
this subject or citizen, in his character of foreigner, should be disquali- 
fied from holding it, he shall have a suitable time for selling it and col- 
lecting the proceeds, without hinderance, and without being subject to 
any duty of retention on the part of the government of the respective 
States." But it is not to be inferred from this, that real estate is exempt 
from all duty ; for you will agree that it would be absurd to subject 
moveable property to a duty, on its sale, as you suppose was done, and to 
leave free from all duty the sale of real estate, whose proceeds pass to 
foreign hands. The duty from which real estate is exempt is that of 
retention, and not that of detraction, amounting to 15 per cent., which is 
that paid by the heirs of Mr. Harang, and which was definitively estab- 
lished by the royal cedula of August 10, 1815, for the promotion of 
commerce, population, the arts and agriculture, of the island of Puerto 
Rico. 

In this light the royal council regarded it, and it was thus presented 
to the United States legation by my predecessor, in his communication 
of September 7, 1847. 

I trust that these explanations will convince you of the solid reasons 
for the resolution adopted in this matter, and that the duties exacted of 



• CASE OF THE BLACK WARRIOR, ETC 209 

the heirs of Mr. Harang were established by general regulations, for 
cases of this kind, which regulations are in no wise opposed to the trea- 
ties subsisting with the^ United States. These treaties the government 
of her majesty observes witr^tfie greater loyalty, as it secures the good 
relations subsisting between the two countries. 

I avail myself of this occasion t© renew to your excellency the as- 
surances of my most distinguished consideration. 

PEDRO J. PIDAL. 

To the Minister Plenipotentiary 

of the United States. 



Legation op the Unites States, San Ildefonso, 

July 23, 1849. 

Sirs I have had the honor to receive the answer of your excellency, 
under date of the 14th, to my note of the 10th instant, in regard to the 
claim of Michael Drausin Harang. The matter is thus made to ap- 
pear a question of importance, not so much from the amount claimed 
as from the principle involved; as I do not hesitate to say the con- 
struction given to the 11th article of the treaty of 1?J95 by the decision 
of the royal council, as explained by your excellency in rejecting the 
claim of Mr. Harang, is not only in conflict with the understanding on 
the part of the United States, but, if sustained by her Majesty's gov- 
ernment, will tend in a great degree to render this article of the treaty 
of little value. 

As I understand the interpretation given to the article in question, 
when it is said in the first sentence of the article that the subjects or 
citizens of each party shall have power to dispose of their "personal 
goods" this phrase is not used in contradistinction to real estate, but the 
words " bienes personates" comprehend every description of property, 
whether moveable or immoveable, personal or real; and as this sen- 
tence gives the power to levy the same dues on the property of the for- 
eigner as the subject, it justifies the intendente of Porto Rico in having 
collected 15 per cent, on the proceeds of the sale of the real estate of 
Alexander Harang, from his son, Michael Drausin Harang. That the 
last sentence in the article, which declares "that when on the death of 
any person holding real estate within the territories of the one party, 
such real estate would, by laws of the land, descend on a subject or 
citizen of the other, were he not disqualified by alienage, such subject 
shall be allowed a reasonable time to sell the same, and to withdraw 
the proceeds without molestation, and exempt from all rights of "de- 
traction" on the part of the government of the respective States," does 
not exempt real estate or its proceeds, in the event of a sale for the 
purpose of withdrawing it from the country, from the payment of the 
same dues as personal effects. I certainly shall not undertake to ques^- 
tion the superior knowledge of your excellency as to what may be the 
law of Spain} yet I feel equally clear in asserting that, by the laws of 
the United States, the words "personal goods" could never be inter- 
preted as embracing " real estate." So we have the singular contra- 
diction that, according to the Spanish version of the treaty, (both being 
equally obligatory,) we have one interpretation, and, according to the 
14 



210 CASE OF THE BLACK WARRIOR. ETC. • 

• 

English version, quite a different one — an anomaly which certainly 
calls for some explanation. But, as I respectfully submit, whilst the 
interpretation given by your excellency conflict^ with the intent, if not 
with the letter of the treaty, that for w^ich I contend accords alike 
with the plain intent as well as with the letter. The first sentence 
relates to the disposition of the personal^, and the latter to that of the 
reality. There are several terms to be found in the first sentence 
whose technical and legal signification shows, beyond all question, that 
they could only be used as applicable to chattel estate, such as, sub- 
jects or citizens shall succeed to their personal goods, whether by tes- 
tament or ab intestato, in case of the absence of the representative, 
such care shall be taken of the said goods. These and the like expres- 
sions appear to me too plain to admit of doubt that chattels alone were 
intended to be embraced, and not real estate. So in the latter sentence 
the language is equally clear in its technical sense, as having reference 
to real and not to personal estate. What sense are we to attach to the 
sentence, " such subject shall be allowed a reasonable time to sell the 
same, [bie?ies raices — landed property,] and to withdraw the proceeds 
without ' molestation,' " if the local authorities are to be allowed to 
exact a tax ad libitum? — for if a tax of 15 per centum may be exacted, 
so may that of any amount at discretion. Again, what meaning is to 
be affixed to the latter words in the sentence, "exempt from all rights 
of detraction on the part of the government of the respective States ?" 
It may be that the word " detraction," in the English version 
of the treaty, has been improperly used, yet the word "retencion" 
is used in the Spanish version. I think it is quite apparent, taking 
the entire article together, that it was the intention of the contracting 
parties to give to the subjects or citizens of each power the right to 
settle within the dominions of the other, to acquire real estate, and at 
their death to dispose of the same, and to grant to the heir or devisee 
the right to sell and carry the proceeds to his own country without 
hindrance or molestation. Your excellency seems to think it would 
have been absurd to have rendered personal effects liable to a tax, and 
at the same time to have exempted the sale of real estate when its pro- 
ceeds were to pass into the hands of a foreigner. I answer, however 
absurd this may seem to be, it would not be more so than the contra- 
dictory sense sought to be given to the Spanish and English versions of 
the article. But the policy which has prevailed with the governments 
of the New World to induce foreigners to emigrate and invest their cap- 
ital in the lands of the country, may seem to explain what might other- 
wise appear as unreasonable. Such certainly has been the policy of the 
United States, and such seems to have been some of the inducements held 
out by the royal decree of August, 1815. In order to satisfy your excel- 
lency that the treaty has been thus understood and acted on in the 
United States, I give you an extract from a letter from the United 
States consul, resident at Porto Rico, who says : " Don Antonio Cabal- 
lero, in his letter of September 7, 1847, to the minister of the United 
States at Madrid, says that the duty of retencion (in the English copy 
of the treaty it is called the right of detraction) is not in the question. 
I insist that it is this very duty of retencion which is in question, as 
regards the proceeds of the sale of this real estate of Alexander 



CASE OF THE BLACK WARRIOR, ETC. 211 

Harang ; when we separate this, the claim falls to the ground." It must 
have been so understood by my predecessor in presenting, as well as 
by my government in urging, the demand. For if the treaty is to re- 
ceive the interpretation give» it by the decision of the royal council, 
then the claim was too groundless to have raised a question, and the 
ten years' correspondence about it has been labor lost. Again, if the 
construction contended for by your excellency should prevail, there 
would be no equality in the privileges secured by the treaty, as a citizen 
of the United States, who may inherit real estate within her Majesty's 
dominions, is subject to a high duty in the sale and withdrawal of its 
proceeds ; whereas a citizen of Spain is subject to no duty for the dis- 
position of any real estate he may inherit in the States. I say this, 
as a female a few days since acknowledged before me, in Madrid, a 
deed conveying her real estate in Florida, which had been devised to 
her by a relative in that State, the proceeds of which she will, doubt- 
less, receive without the payment of any tax whatever. 

I submit, then, as worthy of the grave consideration of her Majesty's 
government, as the interpretation given to this article of the treaty by 
the decision of the royal council differs so widely from that which it 
has received in the United States, and operates so greatly to the preju- 
dice of our citizens, the point should be settled so as to be understood 
alike in both countries for the future ; and as to the past, common 
justice would seem to demand that due satisfaction should be made to 
the claimant. 

I flatter myself her Majesty's government may be induced to take 
this just view of the question, and in order to the settlement of the 
present claim in a satisfactory way, as well as some others now pend- 
ing, it is my purpose to submit a proposition for their adjustment, which 
I am induced to hope may receive the favorable concurrence of your 
excellency. 

I avail myself of the occasion to renew to your excellency assurances 
of my distinguished consideration. 

R. M. SAUNDERS. 

His Excellency Don Pedro Jose Pidal, &c, &c, &c. 



[Extract from Translation.] 

First Department of State, 

At the Palace, September 17, 1849. 

******** 

The claim of the heirs of Mr. Drausin Harang, you are aware, is 
positively denied by the Treasury Department, and I am very sensible 
that the reasons recently alleged by you have not changed my convic- 
tion upon this point. The last argument presented in your note of the 
23d of July, is this .: that you assert the English version of the 11th 
article of the treaty of 1795 has the words right of detraction, instead of 
right of detention, which occurs in the Spanish version. But in which- 
ever mode this matter be considered, either in the English or the 
Spanish version, the result will always be, that in the first part of the 



CASE OP THE BLACK WARRIOR, ETC. 

11th article, a perfect equality is established with the natives of the 
country, and nothing more, as to the right of acquiring and disposing of 
property in ther respective territories, "without paying other or greater 
duties than those paid in like cases by the citizens of the country." Conse- 
quently, Mr. Drausin Harang could not dispose of his property on more 
favorable conditions than the other inhabitants of Puerto Rico. 

The second part of the 11th article, in which the right of detraction 
appears to be abrogated, refers to the ancient right of advenia and 
detraction, which, at the time of negotiating the treaty, began to be ab- 
rogated in Europe. Thus it is seen that this abrogation is established 
where property fell to foreigners, " who, in that capacity, were dtsquali-" 
/led from holding it." This does not happen in the present case, since 
the son of Mr. Harang could hold the inheritance of his father without 
any legal impediment. 

This interpretation of the second part of the 11th article I not only 
consider as logical and natural, but I also regard it as necessary ; for, 
as it concedes to foreigners a privilege above the natives of the coun- 
try, by exempting them from duties of detraction, which those pay, 
this part of the article would be in contradiction to the first, which es- 
tablishes a complete equality upon this point between both. 

I flatter myself that these considerations will satisfy your enlightened 
judgment, and that you will acknowledge my inability to give any 
other decision upon these claims, and to offer to you, before leaving 
this country, an evidence of my desire to please you. 

I avail of this occasion to reiterate to you assurances of my distin- 
guished consideration. 

PEDRO DE PIDAL. 

The Minister Plenipotentiary 

of the United Stales. 



Mr. Barringcr to Mr. Webster. 



'b 



[No. 111.] Legation of the United States, Madrid, 

November 8, 1852. 

Sir: I have the honor to enclose, herewith, a communication ad- 
dressed to Charles De Selding, esq., Washington city, agent for the 
heirs of Louis Alexander Harang, in the matter of their claim against 
the Spanish government. The communication is left unsealed, to be 
read by you, and then to be delivered to Mr. De Selding. 

The amount claimed is considerable, and the principle involved is 
important, as the decision in this case asserts the right, under the 11th 
article of the treaty of 1795 with Spain, to demand and exact from 
American citizens in the United States, to whom inheritances in the 
Spanish possessions may have descended, a large per centage on the 
same as duties of export, ("right of detraction,") whether the said es- 
tates so descended may have been of real or personal property, situated 
and being in the said Spanish possessions. 

The subject is respectfully submitted to your consideration. 



CASE OF THE BLACK WARRIOR, ETC 213 

I have to acknowledge the receipt of dispatches from the Depart- 
ment of State to No. 63, of the 14th August, inclusive. 

I have the honor to remain, with the highest respect, sir, your obe- 
dient servant, 

D. M. BARRINGER. 
Hon. Daniel Webster, 

Secretory of State. 



Mr. Barringer to the Secretary of State. 

[No. 127.] Legation of the United States, Madrid, 

February 23, 1853. 

Sir: I have the honor to communicate the final decision of her 
Majesty's government, again rejecting the claim of the heirs and devi- 
sees of L. A. Harang, deceased, referred to in despatch No. 70 of the 
3d ultimo, from the Department of State, and to transmit herewith 
copies of all the correspondence which has taken place between her 
Majesty's Minister of State and myself on the subject. 

A full examination has induced me to believe that this claim is well 
founded and just, although so long subjected to the embarrassing 
delays and difficulties which are too often thrown in the way of the 
recovery of pecuniary demands from the Spanish government. I re- 
gret to say that, in my opinion, other and more stringent measures will 
be necessary .if the government of the United States mean to enforce 
the payment of this demand. The future means of its final and satis- 
factory adjustment are now submitted to the government at Washington. 

I have the honor to acknowledge the receipt of dispatches from the 
department to No. 72, (marked 71,) of the 26th ultimo, inclusive. 

I have the honor to be, with the highest respect, sir, your obedient 
servant, 

D. M. BARRINGER. 

To the honorable Secretary of State. 



Legation of the United States in Spain, 

Madrid, February 10, 1853. 

Sir: I am instructed to present again to the attention of her Majes- 
ty's government the claim of the heirs and devisees of the late Louis 
Alexander Harang against the government of Spain, and to ask that it 
may have a prompt and favorable consideration and conclusion. 

The case has been a long time pending between the two govern- 
ments, and the department of which your excellency has charge is in 
possession of its history. My immediate predecessor brought it to the 
special notice of her Majesty's government in his notes to that depart- 
^/ment of the ljfth and 23d July, 18*9, and the reply which was then given , 
/ by the Marquis of Pidal was deemed insufficient and unsatisfactory by 
the government of the United States. The claim is for $10,978 12£, 



214 CASE OP THE BLACK WARRIOR, ETC. 

and interest on the same, which was exacted in the year 1839, by the in- 
tendente of the island of Puerto Rico, as a tax of fifteen per cent, for the 
removal of the proceeds of the sale of the real estate owned in said 
island, and devised by the said Harang, a citizen of the United States, 
though resident for several years in the island, to his children, all of 
whom were born in, and at the time were resident citizens of, the 
United States. Against this exaction the said dqpisees and heirs pro- 
tested at the time ; and, under the auspices of the American govern- 
ment, soon afterward presented this claim for the repayment of the 
sum thus exacted. The government of the United States, looking at 
the clear distinction which is made in the treaty of 1795 between the 
proceeds of the real and personal estates of foreign residents in the 
island, have always insisted on the justice of this claim in the long- 
correspondence which ensued, and a reference to which will more 
fully acquaint your excellency with all the facts and circumstances of 
its origin and prosecution. While it is clearly admitted that the per- 
sonal goods of American residents in the island are liable to such dues 
©r taxes to the government as are paid by Spanish subjects under simi- 
lar circumstances, it is fully denied that the proceeds of real estate of 
American citizens are subject to any such exaction ; but it is insisted 
that they may withdraw the same (in the language of the said treaty, 
article 11th) "without molestation, and exempt from all rights of de- 
traction on the part of the government of Spain." 

The consideration of this claim, as well as others which are still 
pending, has been postponed to other matters of more urgent import- 
ance, which have from time to time demanded my attention during the 
period (so important in the relation of our respective governments) of 
my residence at this court. I trust now, however, that it will receive 
the early attention of your excellency, and that a final and favorable 
conclusion may be given to the same. 

I avail myself, &c, &c. 

D. M. BARRINGER. 

His Excellency Count of Alcoy, 

President of the Council and Minister of State. 



[Translation.] 

First Department of State, 

Palace, February 17, 1853. 

Mr Dear Sir : I have had the honor to receive your excellency's 
note of the 10th instant, relative to a claim of Mr. Luis Alexander 
Harang, for the reimbursement, by the Spanish government, of a sum 
©f money which was exacted from him by the intendant of Porto Rico, 
as duty for exporting from the island certain property he possessed in 
it through the death of his father. 

In support of the right, which your excellency says is on the side of 
the party interested, you cite the treaty of 1795, reproducing the argu- 
ment to show that said treaty establishes a difference Tbetween per- 
sonal property and real estate, by which the latter is declared exempt 



CASE OF THE BLACK WARRIOR, ETC 215 

from the payment of 15 per cent, on exportation. This argument, as 
well as the other observations presented by your excellency's prede- 
cessors on taking charge of the matter, were duly answered in the note 
of the Marquis de Pidal, which you quote likewise, and to which I must 
now refer in everything. There had been previously addressed to that 
legation another note, dated 7th of September, 1847, communicating a 
decision which had^>een adopted conformably with the opinion of the 
royal council, disregarding the claim of Mr. Harang, on the grounds 
stated in the aforesaid note of September the 7th. 

This decision, which was adopted after examining minutely all that 
had been alleged in favor of the claimant, all the proper formalities 
being observed, also put an end to the business ; and it cannot be con- 
cealed from one of your excellency's enlightened mind that it is not in 
the power of her Majesty's government to set aside the decision afore- 
said, provoking fresh discussions upon the subject which called it forth, 
much less to alter what is founded upon the opinion of the first con- 
sultative body of the State. 

Nor are there any new arguments or facts alleged at present which 
could be a sufficient cause for resuscitating a question already settled. 
For this reason, and in view of the considerations I have set forth, I 
flatter myself that you will feel convinced that her Majesty's govern- 
ment has not acknowledged the claim of the American subject, Mr. 
Harang, because this would be in opposition to the rules of justice and 
the actual state of the matter. 

I avail myself of this occasion to renew to you the assurances of 
my most distinguished consideration. 
T. K. Y. H. 

Your obedient servant, 

THE COUNT DE ALCOY. 

To the Minister Plenipotentiary 

of the United States. 



i 



Legation of the United States in Spain, 

Madrid, February 20, 1853. 

Sir : I have had the honor to receive your excellency's note of the 
lrfth instant, on the subject of the claim of the heirs and devisees of 
Luis Alexander Harang, deceased. The great length of time during 
which this claim has been pending, and the full examination which it 
has repeatedly received, as well as the declaration of your excellency 
that the decision heretofore made against it by her Majesty's govern- 
ment is reaffirmed, and now to be regarded as final and conclusive on 
their part, restrain me from observations which the merits of the de- 
mand might otherwise render necessary and proper. 

Your excellency cannot, however, fail to perceive that there is a 
direct collision in the construction respectively given to the 1.1th article 
of the treaty of 1795 by the government of her Majesty and that of the 
United States. Under these different constructions Spanish subjects 
owning real estate in the latter country are enjoying advantages which 
are denied to the citizens of the United States in the dominions of her 
Catholic Majesty. This is manifest injustice. It seems to the under- 



216 CASE OP THE BLACK WARRIOR, ETC 

signed that the distinction expressly made both in the Spanish and 
English text of the 11th article of that treaty between personal goods 
and real estate, " bienes personales y bienes raices," (a distinction be- 
tween which is recognised in the legal code of every civilized nation,) 
is too clear to admit of a doubt, and especially when these two classes 
of property are contradistinguished, the one from the other, in the two 
paragraphs of that article, whose framers coul^ not have employed 
plainer language to express their meaning. While the citizens and 
subjects of each party shall have power to dispose of their personal 
goods within the jurisdiction of each other, and may take possession 
of the same, paying such dues only as the inhabitants of the country 
wherein the said goods are shall be subject to pay in like cases, it is 
expressly declared that when, on the death of any person holding real 
estate within the territories of the one party, such real estate would, 
by the laws of the land, descend on a citizen or subject of the other, 
were he not disqualified by being an alien, such subjects shall be 
allowed a reasonable time to sell the same, and to withdraw the pro- 
ceeds without molestation, exempt from all rights of detraction (derechos 
de retencion) on the part of the government of the respective States. 
This latter provision of the article embraces the very case now in 
question. It is unnecessary to say to your excellency that if this be 
the true construction of the treaty, it is not in the power of her Majesty's 
government, by any royal order or cedula whatsoever, or by any deci- 
sion of the royal council, to change its effect without the consent of 
the United States. The final decision now made by her Majesty's 
government will be communicated immediately to that of the United 
States for their further advice and action in the premises. 
I avail myself, &c, &c, 

D. M. BARRINGER. 
His Excellency the Count of Alcoy, 

President of Council and Minister of State. 



Mr. Barringer to Secretary of State. 
[Extract.] 

[No. 129.] Legation of the United States, Madrid, 

March 8, 1853.' 

Sir : I have the honor to transmit herewith copies of an additional 
note from his excellency the Spanish Minister of State, of the [25th] 
ultimo, and of my reply to the same, under date of the [4th] instant, 
on the subject of the long pending claim of the heirs of Louis Alexander 
Harang, deceased. 

This claim originated in the year 1839. Michael D. Harang, for 
himself, and as attorney and agent for his brothers and sisters, having 
made his protest before the American consul at Ponce, in the island of 
Puerto Rico, on the second of March of that year, against the unlawful 
exaction of fifteen p Q r cent, on the proceeds of the sale of the real estate 
of his father, the said L. A. Harang, by order of the intendente of that 
island, amounting to the sum thus taken of $10,978, 1 real and 16 
maravedices. 



CASE OP THE BLACK WARRIOR, ETC 217 

After pending for some time in the tribunals of that island, to which 
Mr. Harang was directed for redress, the claim was presented to the 
government at Madrid, by a note from this legation, on the 27th of 
April, 1841. Since that time it has been the subject of much corres- 
pondence on the part of this legation, and of great and vexatious delays 
on the part of her Majesty's government — delays frequently and 
strongly complained of by my predecessor in office. In the year 1847, 
after taking the opinion of the royal council, the claim was rejected, 
and upon an application for reconsideration, was again rejected in the 
year 1849, and then referred by my immediate predecessor to the gov- 
ernment at Washington for new instructions. Under these renewed 
instructions, received only during the present year, I deemed it my 
duty to present the subject at once to her Majesty's government, and, 
under all the circumstances of the case, to urge its immediate and 
favorable decision. In my dispatch, No. 127, of the 28th ultimo, I had 
the honor to communicate the correspondence then had by me with the 
Spanish government on this subject. It will be seen from that now 
transmitted, that the grounds of opposition to this claim, if not changed 
in fact, are added to by new arguments, involving most important prin- 
ciples in the construction of the treaty of 1795. 

While the claim was originally resisted on the ground that the father 
and testator was a naturalized subject of Spain, (a circumstance which 
was not true, but which, if tiue, would not make the slightest differ- 
ence in my opinion ;) then, that in accepting the benefits of the royal 
cedula of 1815, he subjected himself to its consequences, one of which 
was the liability of this duty of " extraction" or export, on withdrawing 
the estate from the island ; then, that there was no distinction between 
personal and real estate in the eleventh article of the treaty of 1795 ; 
then, that the tax exacted was not of the class referred to in that article ; 
then, that the case was finally terminated by the decision of the royal 
council, with which her Majesty's government could not interfere ; and 
by other similar objections, all of which have been successively, and, 
as I think, successfully answered ; the Spanish government have now 
assumed the high ground that the stipulations of the treaty were never 
applicable in any manner or sense to the colonies of Spain ; and that, 
even if they were, the case in question is not within the provision made 
in the last clause of the eleventh article of that treaty ; for the heirs of 
Harang, the father, were not " disqualified," (" inhabiles,") as aliens, 
from possessing the real estate which was sold, and on the proceeds of 
which the tax was levied. How I have attempted to reply to these 
new arguments, the last of which, I freely admit, is the most plausible 
yet presented, will be seen by the correspondence now communicated 
to the department. 

I am also free to say that I anticipate no favorable conclusion to this 
and other American claims now pending, unless other measures are 
adopted than those of mere official correspondence. 

I have the honor to remain sir, &c, 

D. M. BARRINGER. 
Hon. Secretary of State. 



218 case of the black warrior, etc 

Legation of the United States, Madrid, 

March 4, 1853. 

Sir : I have had the honor to receive your excellency's note of the 
25th ultimo, in reference to the claim of the heirs and devisees of 
Alexander Harang, deceased, and will at the earliest period transmit 
a copy of the same to the government at Washington, to which the case 
has been referred for further advice and action. T cannot forbear, how- 
ever, to remark briefly on the new arguments which have been adduced 
by your excellency in support of the decision taken by her Majesty's 
government on this subject. 

In the first place, it is now insisted that the provisions of the treaty 
of 1795 do not extend to the colonies of her Majesty's government, but 
are confined in their operation to the peninsula ; and that, inasmuch 
as there never has been any prohibition against foreigners holding real 
estate in the peninsula, the last clause of the eleventh article can only 
be considered as applicable to cases arising in the United States, where 
such prohibition does exist. 

To this it is sufficient to answer, that there is no exception of the 
colonies of Spain in the terms of the treaty ; on the contrary; its lan- 
guage is as comprehensive as possible, embracing within its operation 
the "dominions," "territories," "jurisdictions," "citizens and subjects," 
of both the high contracting parties, "without exception of persons or 
places." 

The territory of Louisiana itself, to which reference is made in the 
treaty, was then a colony of Spain. That its stipulations extended to 
the Spanish colonial possessions has never been denied, as far as I am 
aware, by either power, from its date in 1795, to the present time. 
Such has been the understanding ever since. Commerce has been 
conducted j claims presented and adjusted ; judicial proceedings, both 
criminal and civil, instituted and terminated, not only without objec- 
tion on this account, but for the very reason that such subjects, although 
arising in the colonies of Spain, are embraced by the treaty. Indeed the 
provisions of this treaty furnish the chief guarantee for the security of 
the rights of person and property in every part and jurisdiction of the 
two nations. What would be the condition of American citizens in the 
island of Cuba or Puerto Rico, without the stipulations of the seventn, 
twentieth, and other articles of that treaty ? It is too late to say that it 
does not extend to the colonies of her Catholic Majesty, and against the 
conclusion of your excellency I do most earnestly protest, as contra- 
dicted by the words of the treaty itself, by the general understanding 
and practice under it ever since, and as jeoparding the highest and 
most important interests of American citizens, having commercial or 
other transactions with these colonies. 

As to the construction of the particular clause in question, its very 
language manifestly shows that it was not intended to be confined in 
its operation to cases arising in theUnited States only. The expressions 
used are reciprocal and mutual, referring to the "citizens and subjects" 
of either government, and declaring that, in the case provided for, the 
proceeds of the property sold may be withdrawn by the heir without 
molestation, and exempt from all rights of " detraction" on the part of 
the governments of the " respective States" (" sin obstaculo exerto de 



CASE OF THE BLACK WARRIOR, ETC. 219 

todo derecho de retencion de parte del gobierno de los estados respee- 
tivos.") If, then, this provision could not extend, as your excellency 
says, to the peninsula, because no such prohibition to hold real estate 
by a foreigner ever existed here, it must necessarily embrace the other 
and colonial territories of her Catholic Majesty, for certainly the terri- 
tories of both States respetively are referred to and embraced in this 
clause of the treaty. But I contend, and respectfully submit to your 
excellency, that this provision of the treaty extends to all the pos- 
sessions of her Catholic Majesty, peninsula and colonial; for although 
a prohibition to hold real estate, (bienes raices,) on the part of a for- 
eigner has not yet existed in the peninsula, it does not follow that such 
prohibition may not hereafter be created by law, to take effect not only 
here, but in the colonies of Spain. In fact, we find that in the year 
1815 it was deemed wise and necessary to provide by royal cedula of 
that year for the possession and occupation of real estate by foreigners 
as colonists, in the island of Puerto Rico. 

And this brings me to the other principal argument of your excel- 
lency, to wit : That, admitting the stipulations of the treaty to extend 
to the colonies of Spain, this claim is not well founded, because not 
within the case provided for by the last clause of the 11th article of the 
treaty, for Mr. Harang was compelled to pay the duties of the products 
of the sale, not because the heirs of his father could not, but because 
they would not, possess the estate thus sold. In answer to this objec- 
tion, I ask, how could the heirs have taken possession of this property 
except under the royal cedula of 1815, which cannot contradict or vary 
the terms of the treaty, and which could only apply to colonists from 
Spain or other countries, except the United States, for whose citizens, 
to whom the real estate might descend in case of the death of the first 
owner, provision was already made by the treaty? But this circum- 
stance does not alter or weaken the argument, that when the case pro- 
vided for by the treaty arises, whether under or independent of this 
royal order or any other law, the foreign heir is entitled to all the bene- 
fits of such provision, free from all condition, " obstacle" burden, or 
tax not therein stipulated. Spain could not make a law to impair or 
vary the full effect of the treaty in any respect, without the consent of 
the United States, so far as concerns the rights and privileges of the 
citizens of the latter under the same. In the case provided for by the 
11th article, the person who would be the heir of the citizen or subject 
of either country, native or naturalized, holding real estate in the same, 
were he not disqualified by being an alien from possessing the same, 
shall be allowed a reasonable time to sell and collect the proceeds of 
the property, and to withdraw the same to his own country, without 
hinderance, or tax, or condition of any kind inconsistent with his resi- 
dence or other privilege in his own nation. It is sufficient to bring 
such person within the provision of this article, that by the laws of the 
land such real estate would descend on him were he not an alien, (estos 
raices llegasen a pasar este por su calidad de estrangero fues inhabit 
para poscerlos.) Notwithstanding the apparent difference in the 
Spanish and English text of the treaty, this I take to be the substantial 
purport and meaning of the article. No change of residence is required 
on the part of the heir; no new conditions are allowed, other than such 



220 CASE OF THE BLACK WARRIOR, ETC 

as are in conformity with the treaty itself. What is the case under the 
royal cedula of 1815 ? This royal order was intended to aid the colo- 
nization of the Spanish possessions beyond sea — to people with whites 
the islands of Cuba, Poto Rico, and St. Domingo. The privileges 
granted were personal to the colonists, who were required to be 
residents and established in the islands, and could not leave it, after a 
residence of five years, to live in their former country. These colonists 
could, it is true, leave their property, if they died in the island without 
forced heirs, to their relations or friends, wherever they might reside ; 
and their successors might enjoy the privileges conceded to their testa- 
tors, or the original colonists, if they would establish themselves in the 
island. But if they preferred to withdraw the inheritance, and did so 
after the testator had been established five years within the island, they 
niust pay the 15 per cent., as improperly exacted from Mr. Harang. It 
is manifest that this is not the case provided for by the treaty, which 
simply required that the claimant should be the person to whom the 
inheritance would descend were he not an alien, and which exacted no 
change of residence from his own country to be entitled to its benefits. 
Whatsoever provisions existed in this or any other royal cedula, con- 
trary to those of the treaty of 1795, were void and of no effect, with re- 
spect to the rights of the citizens of the United States, without the con- 
sent and concurrence of the latter; and it is not in the power of her 
Majesty's government to transfer a claim properly arising under the 
treaty, to other and different and contradictory provisions of the royal 
cedula of 1815, which was made and declared for another and wholly 
separate purpose. For these and other reasons contained in the pre- 
vious correspondence of this legation with her Majesty's government 
on this subject, I cannot concur in the conclusion to which your excel- 
lency has arrived against the validity of this claim. 

I avail myself of this occasion, &c, &c, &c, 

D. M. BARRINGER. 

His Excellency the Count op Alcoy, 

President of the Coimcil and Minister of State. 



Mr. Barringer to the Secretary of State. 

[No. 133.] Legation of the United States, Madrid, 

March 26, 1853. 

Sir : I have the honor to transmit herewith copies of a note from her 
Majesty's Minister of State of the 16th instant, and of my reply to the 
same, under date of the 19th instant, and of the final note of the former, 
dated 24th instant, on the subject of the claim of the heirs and devisees 
of L. A. Harang, deceased, referred to in my dispatches, No. 127, of 
23d ultimo, and No. 129, of the 8th instant, to the Department of State. 

As it is now useless to attempt here to reverse the decision of her 
Majesty's government in this case, it is referred to the government of 
the United States for their further action in the premises, if deemed 
necessary or proper. 

This claim has now assumed a high degree of importance, not so 



CASE OF THE BLACK WARRIOR, ETC. 221 

much from its pecuniary amount, though this is not inconsiderable, as 
from the magnitude of the principles involved, and especially from the 
position recently but solemnly taken by her Majesty's government, that 
the treaty of 27th October, 1795, is not, and never was, applicable to the 
Spanish colonies — a position which, with all its serious consequences, is 
respectfully submitted to the prompt and grave consideration of the 
government of the United States. 

I have the honor to be, with the highest respect, sir, your obedient 
servant, 



D. M. BARRINGER. 



The Hon. Secretary of State. 



The Count of Alcoy to Mr. Barringer. 

[Translation.] 

First Department of State, 

Palace, March 16, 1853. 

Shi: I have had the honor to receive the note of your excellency, 
dated the 4th instant, in reply to mine of the 25th ultimo, relative to 
the claim of the heirs of the American citizen, Mr. Harang. 

Although in the actual state of this affair a prolonged discussion 
seems to be unnecessary, nevertheless, certain principles having been 
affirmed by your excellency in the course of your remarks, which I do 
not consider that the government of her Majesty can admit, it is indis- 
pensable for me to enter again into the discussion, proposing, in so 
doing, to follow the same order in which your excellency is pleased to 
present your arguments. 

In the first place, your excellency, maintaining that the stipulations 
of the treaty of 1795 comprehended the Spanish colonies, in support 
of this opinion, limits yourself to citing the words of the treaty, ac- 
cording to which the exception affirmed in my note does not appear. 

In order that your excellency should allow the erroneousness of this 
opinion, it will be sufficient to observe, that when the treaty under con- 
sideration was made, every kind of intercourse between our colonies 
and foreign subjects was absolutely prohibited by the laws of the Indies ; 
and this so express prohibition, which, by no stipulation of the treaty, 
was declared revoked, made unnecessary all explanation upon the fact 
that the said treaty was only applicable to the territory of the peninsula; 
in proof of which it was sufficient to consider, that, in order that its pro- 
visions might extend to the territory of Louisiana, then a Spanish colony, 
it was necessary that a declaration to that effect should intervene, other- 
wise that colony would have remained comprehended in the general 
exception which then existed with respect to all. 

As to the surprise which it seems was caused to your excellency by 
the principle affirmed in my former note, that the treaties cannot refer 
to those dominions, your excellency will permit me to say, that I do not 
comprehend that surprise, seeing that your excellency might have ob- 
served the difference between the usages established for the peninsula 



222 CASE OF THE BLACK WARRIOR, ETC 

and those which are in force beyond sea, as well in the manner in which 
foreign consuls exercise their functions, as with respect to shipwrecks, 
intestate successions by the subjects of other countries, and other mat- 
ters comprehended in the general administration in those points in 
which the stipulations of the treaties exercise their influence. Such a 
difference demonstrates that the colonies are not within the common 
law; and this being so, it could hardly be said that the stipulations of 
the treaties are alike applicable in all the territory of the Spanish do- 
minions. 

Upon this same point your excellency solemnly protests, adding that 
it is already too late for the government of her Majesty to make the 
declaration that the treaties are not extensive to the colonies. Your 
excellency will permit me to express my judgment that the protest, 
rather than the declaration, may be regarded as inconsiderate, (or extem- 
poraneous,) this being sufficiently proved by the declaration of the gov- 
ernment at Washington itself, stated in a recent note addressed by Mr. 
Everett to Sefior Calderon, dated the 5th of February last. 

Says the Minister of Foreign Affairs of the Confederation : " The 
treaty of 1795, if applicable to the colonies of Spain, which is not 
admitted by the government of her Catholic Majesty." 

Such language shows clearly that to the government at Washington 
the declaration against which your excellency protests was not new, 
seeing that upon this is based its proposition for a reform of the treaty 
of 1795. 

Limiting myself now to the particular clause of article 11th of this 
treaty, upon which it is pretended to found the right of Mr. Harang, 
1 cannot do less than insist upon what I had the honor to expose to 
your excellency, that said clause cannot refer in any way to the colonial 
dominions of her Majest}'". That clause was necessarily made recipro- 
cal, and justly so, in provision of the case that the alien should be 
prohibited from holding real estate in the peninsula; but never could it 
comprehend the colonies, because these were closed, as I have said, to 
all foreign intercourse at the time the treaty was made. 

Although subsequently the royal letters patent of 1815 changed the 
condition of that part of the Spanish territory, it was not, on that ac- 
count, comprehended in the stipulations of the treaty ; and although 
these stipulations may have been applicable there, in so far as they refer 
to the general obligations which serve as a basis to the relations of 
friendship, they have not been applicable, nor can they be, in so far as 
they conflict with the provisions of the said royal letters patent. These 
letters, published by the Spanish government, in the use and free exer- 
cise of its power to administer the affairs of the colonies according as it 
might deem best, did not provoke any protest on the part of any nation, 
nor from the United States — an evident proof that all recognised, as 
could not be otherwise, the independence. of Spain to legislate in her 
colonies without attention or subjection to anterior treaties. 

In support of what I have just said, another consideration offers itself, 
which comes in to destroy the reflections contained in the last part of 
the note of your excellency, in which it is pretended that although the 
Spanish occupants of land, or those of other countries, might be sub- 
jected to the payment of the duties on the exportation of an inheritance, 



CASE OF THE BLACK WARRIOR, ETC. 223 

'the Anglo-Americans, citizens of the Union, ought to be exempt from 
such duties. 

In order to give to the clause of the treaty referred to the interpre- 
tation which your excellency indicates, it will be necessary to place the 
citizens of the United States in a better condition even than the Span- 
ish subjects ; and such a situation, contrary to the rules of equity and to 
the exactions of self-respect, would have no better foundation than a 
stipulation inapplicable to the colonies, and which, even if it were appli- 
cable, would not comprehend cases of the kind of this of Mr. Harang, 
because the treaty makes no reference to property acquired under the 
condition of colonist-settlers on the land. With respect to such property, 
as advantages were enjoyed for its acquisition not in general conceded, 
compensations were also imposed, which depend in a certain degree 
upon the will of the alien ; since, whilst he has the power to hold the 
property, only in the case of withdrawing its proceeds by a spontaneous 
act, is he obliged to pay the compensation for the benefits received. 

If the Spanish government could have believed that the Anglo-Amer- 
icans were not subject to the payment of the duty on exportation, it 
would have from the first moment excluded them from the privileges 
conceded by the royal letters patent of 1815, because it would have 
been highly unjust, not to say absurd, that the benefits should be ex- 
tended to them, and not at the same time the burdens. 

I will conclude by manifesting to your excellencythatlhavenot been 
able to see without regret the turn which has been given to this affair, 
already determined, and which was believed to be abandoned for many 
years, and that a discussion already exhausted is still persisted in, since 
it may perhaps reveal a disposition little friendly, and little in harmony 
with that moderation and forbearance which the government of her 
Majesty employs when it addresses itself to that of the United States, 
on subjects of greater importance, and infinitely more clear in their jus- 
tice, than that which is the object of this correspondence. 

I avail myself of this occasion to renew to your excellency the assur- 
ance of my most distinguished consideration, &c, &c, &c, 

THE COUNT OF ALCOY. 

To the Minister Plenipotentiary, 

of the United States. 



Mr. Barringer to Count Alcoy. 

i 

Legation of the United States, Madrid, 

March 19, 1853. 
Sir : I have had the honor to receive your excellency's note of the 
16th instant, in reply to mine of the 4th of same month, on the subject 
of the claim of the heirs of L. A. Harang, deceased. It is not my pur- 
pose, in this communication, to renew the discussion on the merits of the 
claim itself, both because, in the argument of your excellency, I find 
nothing new on a subject already exhausted, and more especially be- 
cause I do not deem it either becoming or useful to enlarge on a ques- 
tion which your excellency has been pleased to repeat to me is now 



224 CASE OF THE BLACK WARRIOR, ETC. 

finally determined (" ya resuelto " ) by her Majesty's government. Your 
excellency will pardon me for saying, however, that it is a great mis- 
take on the part of your excellency to suppose that this claim has ever 
been "abandoned" at any time by the government of the United States, 
much less for " many years." On the contrary, it will be seen from 
one of the last notes addressed by my predecessor to the department in 
the worthy charge of your excellency, that it was still to be prosecuted. 
Neither can any inference of abandonment be drawn from the length of 
time it has been pending ; for such an argument would be fatal to most 
of the claims of American citizens presented and now urged upon her 
Majesty's government for final adjudication and satisfaction. If this 
claim has been along time undecided, a reference to the correspondence 
will show that it has not been for the want of urgency on the part of 
this legation or the government of the United States ; though I am 
happy to be able to do your excellency the justice to say, that since it 
has been brought to the attention of your excellency, it has received the 
most prompt consideration, as well as other matters which it has been 
my duty^ to bring to the notice of her Majesty's government during the 
period of your excellency's administration. As to the course ("giro") 
which this discussion has taken, I must be allowed to says that, while 
I am conscious of nothing inconsistent with the most friendly sentiments 
towards her Majesty's government, and least of all towards your ex- 
cellency, and of nothing incompatible with the calm and impassioned 
style of diplomatic correspondence, I must nevertheless always reserve 
to myself the right of judging what is due in such correspondence, not 
only to myself and the much more important interests of my country- 
men, but also to a proper respect for my own as well as the govern- 
ment which it is my duty to address under a just sense of all these re- 
sponsibilities. 

As to the great principle now for the first time invoked in bar to this 
claim, and compared with which the claim itself, though important to 
the petitioners, is as nothing, viz : that the treaty of 1795 was never ap- 
plicable to the Spanish colonies, I cannot do less than repeat my surprise 
at a proposition, which a review of all the diplomatic intercourse be- 
tween Spain and the United States will disclose, is of the most recent 
origin ; which is contrary to what has ever been the understanding of 
the latter ; and which, in the opinion of the undersigned, is not sus- 
tained by any examination of the provisions of the treaty itself, nor by 
its contemporaneous or subsequent history or construction. It is not 
my intention to be led into a general, though incidental, discussion of 
so grave a question on this much less important claim ; still, I cannot for- 
bear to remark, that if this objection be well founded, it is at once clearly 
a full and ready answer to a demand which is solely and originally 
founded on the eleventh article of that very treaty. Yet in all the pre- 
vious discussion, and among the many and various arguments which 
have been urged against the validity of this claim since the year 1839, 
both in the island of Porto Rico, where it was examined by the judicial 
tribunals, and at this court, where it has been the subject of so much 
correspondence, this objection, so obvious to your excellency, and 
which must have been so to others, if true, has never been once sug- 
gested till urged in the note of your excellency of the 25th ultimo. 



CASE OF THE BLACK WARRIOR, ETC 225 

In the full examination given to the case by the Marquis of Pidal, so 
generally known for his acuteness as a jurist and his ability as a states- 
man, this plain objection escaped his astute and profound research, and 
his arguments were based on the proposition, that while the eleventh 
article of the treaty was indeed (as well as others) applicable to the colo- 
nies, the claim of the heirs of Harang did not come within its provisions. 
It would be difficult to find a single admission on the part of the United 
States that the principle now contended for is correct ; and equally diffi- 
cult, I think, to meet with a similar declaration on the part of her 
Majesty's government, until within a very recent period. On the con- 
trary, the correspondence between the two governments is full of 
admissions that the treaty is applicable to the Spanish colonies as well 
as the peninsula. It is not necessary to refer to these more specifically 
at this time. Such has hitherto been the understanding of both parties 
to the treaty. Under this construction American consuls have been 
admitted, shipwrecks provided for, inheritances allowed, judicial pro- 
ceedings regulated, and commercial intercourse permitted and conti oiled 
between the United States and these colonies. No " law of the Indies," 
then existing or subsequently enacted, could avoid and make null the 
stipulations of the treaty as to the rights therein secured to the citizens 
of the United States. As to the contracting parties themselves, such a 
compact is the supreme law, not to be abrogated by the separate legisla- 
tion of either, or without the consent of both. But I refrain from further 
observation on this grave subject, with the single remark, that if, indeed, 
this treaty be not applicable to the colonies of Spain, it is surely time, 
as indicated by Mr. Everett in the 'portion of a sentence which your ex- 
cellency quotes in his note of the 5th ultimo, to the Spanish minister at 
Washington, that it should be "reformed" as well for the continuance 
of the friendship and sentiments of harmony which now animate both 
governments, as for the best interests of their respective citizens and 
subjects. 

I avail myself of this occasion to renew to your excellency the assu- 
rance of my most distinguished consideration. 

Your excellency's obedient servant, 

D. M. BARRINGER. 

To his Excellency the Count of Alcoy, 

President of the Council and Minister of State. 



[Translation.] 

First Department of State, 

Palace, March 24, 1853. 

My Dear Sir : I have had the honor to receive the note of your ex- 
cellency of the 19th instant, relative to the claim of Mr. Harang, and 
there being no reasons alleged, nor arguments presented, which have 
not been answered in my previous notes in regard to said reclamation, 
I must confine myself to reasserting all that is set forth in them, in sup- 
port of the justice with which her Majesty's government thinks it has 
proceeded in this matter, 
15 



226 CASE OF THE BLACK WARRIOR, ETC 

I avail myself of this occasion to renew to you the assurances of my 
most distinguished consideration. 
T, K. Y. H. 

Your obedient servant, 

THE COUNT ALCOY, 
The Minister Plenipotentiary of the United States. 



Mr. Gallahcr to Mr. Forsyth. 

[No. 11.] Consulate of the IL S., Ponce, Porto Rico, 

November 23, 1838. 

Sir : I beg leave respectfully to call your attention to a claim made 
by the government of this island of fifteen per cent, upon the property 
of all persons, citizens of other countries than of Spain, who may wish 
to leave the island, and to carry away their property with them. This 
claim, although founded on the "real cedula" of August 10, 1815, is 
considered by the Americans and Frenchmen resident here as very 
oppressive, and as not treating them with the privileges which citizens 
of Spain enjoy in the United States and France. 

A demand of from $45,000 to $50,000, made by this government the 
past week on the property of five individuals, deposited in the hands of 
the French vice-consul in Ponce, to be paid within twenty-four hours r 
having been resisted by him, the decision of the legality of the demand 
has been referred to the action of the French and Spanish govern- 
ments. 

It has been thought by my countrymen here that the simultaneous 
action of the American government would have a highly beneficial ef- 
fect on the interests of American citizens residing at Porto Rico. 

I have the honor to be, with great respect, your obedient servant, 

J. C. GALLAHER. 

Hon. John Forsyth, 

Secretary of State, Washington. 



//, 



CASE OF THE SEAMEN BELONGING TO THE BRIG JASPER. 

Mr. Robertson to Mr. Marcy. 



[No. 36-3 Consulate of the United States, Havana, 

July 6, 185$. 

Sir : I have the honor to enclose you herewith a copy of a correspon- 
dence concerning three American sailors, who are now imprisoned in 
Havana. The three men are undoubtedly Americans, and make the 
following statement : "We sailed from New York on the 12th of last De- 
cember, in the American barque "Jasper," Captain Townsend, bound for 
Sierra Leone ; had on board rum, sugar, and other merchandise of lawful 
trade, as we. believed. We did not go to Sierra Leone, but into another 
port, calledi£lmina, in Africa, where part of the cargo was landed ', 



gM, ft 



totk+A fa n*fai*+i - S*$'*.i /'Wat. &**. 

CASE OF THE BLACK WARRIOR, ETC ** 227 

then we proceeded to Cape Coast, where another part of the cargo was 
landed, and some othefcafgo taken in ; we then went to another port 
and landed what cargo we had on board, except some twenty or thirty 
casks of rum ; we then sailed for another place, where we were told 
by Captain Townsend that he had sold his ship. To our astonishment, 
about five minutes after arrival, we saw boats coming towards us with 
negroes ; we thought at first that they were coming to take the ship 
from us ; afterwards thought that they might be coming for purposes 
of trade, as we had still on board some twenty or thirty casks of rum, 
which were placed upon other casks, which, when taken in at the for- 
mer place, we had supposed to contain rum, but turned out to have 
nothing but water. We then discovered that we were in a ship en- 
gaged in the slave trade, and demanded to go ashore. Captain Town- 
send paid us three months' extra wages, saying that he had made a 
losing voyage ; told us that he could no longer protect us, and advised 
us to go back in the vessel as passengers, as we should either be killed 
by the natives or starved to death if we went ashore. We then had no 
other recourse but to remain on the ship, on which we did duty as 
sailors, and were very badly treated. A cargo of nearly 300 negroes 
was put on board — part of the negroes were on board before Captain 
Townsend had left the vessel to go ashore. The vessel then sailed for 
Cuba ; used no flag on the passage to Cuba, but a Spanish flag was 
made on the way ; and when we went into a place, the name of which 
we cannot recollect, where the slaves were landed and taken charge 
of by other parties, the Spanish flag was hoisted. After the cargo was 
landed the vessel put off and got aground, but was taken off. She soon 
after grounded again ; we suspect it was done purposely, but are not 
sure. We worked to get her off without success ; she was then burnt. 
We all went ashore. When there, the mate, a Spaniard, told us that 
he could do nothing for us but give us the long-boat, and told us to try 
and find our way. There was an Englishman, Radcliffe, in the party, 
who said that he intended to lay his case before the admiralty. The 
captain and officers were Spaniards ; there was one man that they 
used to call Loper, and another Dionisio, but we believe these were 
assumed names. W x e never heard the captain's name on board, but 
subsequently heard that it was Jose Cortes. We took the long-boat, 
intending to proceed to Key West, but afterwards determined to go 
to the nearest place where we could find an American consul. Being 
short of water and provisions, we put up at Cape Antonio ; while 
there, some people went and advised some troops stationed a short 
distance off, who came and arrested us. This was on the 5th of 
May. We were conveyed in our boat, guarded by soldiers, and de- 
livered to a Spanish schooner of war, which kept us in the stocks, after 
her commander had asked us several questions, several days, then sent 
us to Havana, where we were detained about eight days on board the 
ship that fires a gun every night at 8 o'clock. We were subsequently, 
that is, last Saturday, put into this jail. When we were taken on the 
schooner, knowing that the slave trade was contrary to law, being ig- 
norant of the Spanish laws, and being afraid that if we were discovered 
to have been engaged in that trade we should be in trouble, we evaded 
all the questions by saying that we had come from Jamaica." 



228 CASE OF THE BLACK WARRIOR, ETC 

The above is an outline of their statement, collected through the bars 
of the prison, and there may be some errors and omissions, but I be- 
lieve I have given a full statement. Their declarations will be impor- 
tant, so far as Captain Townsend and other parties in the United States 
are concerned. From my conversations with the seamen, I entertain 
no doubt of their innocence. At the same time I feel apprehensive 
that there will be great delay in granting my request, if granted at all. 
Should this prove to be the case, and as the men complain of most 
brutal treatment, and are confined in a room with some thirty or forty 
criminals, I must request the favor of specific instructions on this sub- 
ject. In the mean time I shall urge the permission to take their decla- 
rations ; and, if I find them innocent, and the declarations important, 
shall then urge their immediate delivery to me, to be sent to the author- 
ities of the United States. 

As the vessel that has been engaged in the slave trade is the barque 
" Jasper," which was detained here for a long time by Judge Sharkey, 
I beg leave to refer to his communication to the department of July 7, 
1852, numbered 9. 

I have the honor to be, with great respect, your obedient servant, 

WM. H. ROBERTSON, 
Vice-consul, in charge of the Consulate. 

Hon. Wm. L. Marcy, 

Secretary of State. 



/ 

Sir : There are three of us, Americans, that were picked up at Cape 
Antonio on the 5th of May last, and since that time have been confined, 
and are now lying in the Havana prison. We ask of you, sir, if you 
would favor us with an interview. We wish to state to you our case 
as it was, which is very plain, and can be spoken in a few words. 
Yours, respectfully, 

WILLIAM FREEBURN, 
WILLIAM ATKINS, 
HARVEY PARKS. 



Consulate of the United States, Havana, 

July 5, 1853. 

Most Excellent Sir : On the afternoon of the day before yesterday 
I received a communication from William Atkins, William Freeburn, 
and Harvey Parks, three American seamen now in the royal jail of this 
city, requesting me to call on them at the jail, and hear their statement 
of the circumstances under which they have been imprisoned, and also 
the circumstances that led to it. I have repaired to the prison at their 
request, and learned sufficient from them to make it important that I 
should take their declarations at the office of this consulate ; and for this 
purpose I have to request the favor of your excellency to permit these 
three men to come to my office, to be examined by me. 

This consulate has received two communications in regard to these 
men from his excellency the commander-in-chief of her Catholic Ma- 



CASE OF THE BLACK WARRIOR, ETC. 229 

jesty's naval forces, &c, at Havana ; one, dated 18th of May, inform- 
ing my predecessor, Mr. Sharkey, of their arrest at Cape San Antonio, 
of their having been delivered to her Majesty's schooner " Habenera," of 
their statements on board of that vessel, and of his excellency's having 
given orders for their being brought to this port, which determination of 
his excellency, the consul, Mr. Sharkey, deemed the best and most proper 
course, and so wrote to his excellency, with some other remarks. The 
other communication is of the 27th of June last, transmitting to me a 
copy of what the commanding officer of the " Habanera" wrote to his 
excellency he had ascertained about these men ; and his excellency 
further informed me m his communication that the men had under that 
date been placed at your excellency's disposal. When I received this 
communication, it was at first my intention to have written to your ex- 
cellency upon the subject, but thought that it was proper to await your 
excellency's communication to me, as the men were accused, though 
vaguely, of having infringed the laws of Spain, and some time would 
be necessary to investigate the affair. Not having had the honor of re- 
ceiving any notice on the subject from your excellency, and the men 
having assured me that they are innocent of any intention to infringe 
either the laws of the United States or Spain, I feel it a duty to obtain 
as soon as possible all the reliable aud trustworthy information that 
may lead to their being released, if innocent as they say they are, from 
their painful situation, which is made more so by being placed (as they 
are in the prison) in company with men whom they naturally dislike, 
and who from prejudices or other causes have contributed to make their 
life disagreeable. 

I have the honor to be, with great respect, your excellency's most 
^obedient servant, 

WM. H. ROBERTSON. 
Commercial Agent in charge of the Consulate of the United States. 

His Excellency Sr. Don Valentin Canedo, 

Governor and Captain General of the Island of Cuba, 



Mr. Robertson to Mr. Marc%. 

£No. 41.] Consulate of the United States, Havana, 

My 11, 1853. 

Sir : I beg leave to call your attention to the annexed copy of a 
communication that I received yesterday morning from the Captain 
•General, in reply to mine of the 5th, in relation to the three American 
seamen now in prison, of whom I treated m my letter to you of the 6th 
instant, numbered 36. 

You will perceive that the Captain General expresses a regret that 
be cannot accede to my wishes, as the affair being one concerning the 
landing on this island of negroes from Africa, in a vessel which was 
set fire to after having -effected the landing, and the men in question 
baving formed a part of her crew, the investigation of it belongs to the 
jeal audiencia pretorial (superior court of judicature,) and the Captain 



230 CASE OF THE BLACK WARRIOR, ETC 

General asserts that he has not the power to intermeddle in affairs of 
that nature. He also tells me that he has transmitted my communica- 
tion to that court. In the mean time the men remain in prison, but the 
Captain General having stated that the affair is undergoing examina- 
tion before the proper court, and as I am recognised as a mere commer- 
cial agent, I have no authority to push the matter, unless positive in- 
structions reach me from the State Department. I again beg of you to 
transmit them as soon as possible. 

I have the honor to be, sir, very respectfully, your obedient servant, 

W. H. ROBERTSON, 
Vice-consul, in charge of the consulate. 
Hon. Wm. L. Marcy, 

Secretary of State, Washington. 



[Translation.] 



[l. s.] 



ALWAYS FAITHFUL ISLAND OF CUBA. CAPTAIN GENERAL AND GOV- 
ERNMENT'S OFFICE, POLITICAL DEPARTMENT, SECTION FIFTH. 

I have received your communication of the 5th instant, and I regret 
that I cannot accede to your wishes, as it is not in my power to inter- 
fere with matters of which the royal pretorial audience has cognizance, 
and which belongs to its jurisdiction, in conformity with a very recent 
law concerning the suppression of the slave traffic, in regard to the 
legal proceedings which he understands to refer to the landing of ne- 
groes at Bailen, which have been imported from Africa in a vessel that 
was burnt, of the crew of which the sailors, William Atkins or Ackiam, 
William Freeburn or Firbourn, and Harvey Parks or Pencas, in whose 
behalf you are interesting yourself. Nevertheless, I have this day 
transmitted to said superior tribunal your communication aforesaid, to 
be disposed of as it may be thought proper, and this is the reply I have 
to make to you on the subject. 

God preserve you a thousand years. Havana, July 8, 1853. 



VALENTIN CANEDO. 



To the Commercial Agent 

of the United States. 



Mr. Robertson to Mr. Marcy. 

Consulate of the United States, Havana, 

.7% 13, 1853. 

Sir: This morning I received a visit from * * * who read me 
a letter, dated -on the 9th inst., in which the writer says there are still 
six of the crew on the Cortes key, of the bark Jasper, (Americans.) 
The writer intimates that he has had a conversation with them, and 
that they are almost in a state of desperation, and apprehensive that they 



CASE OF THE BLACK WARRIOR, ETC 231 

are destined to be assassinated, and were beseeching assistance to be 
relieved. * * * regretted that there were no men of war in port, 
or he would send one down, and as soon as one came in he would des- 
patch her down there, and find them or their graves. On the receipt of 
this information I repaired to the prison, and found the three prisoners 
in the same den as before, and also ascertained that they had left on 
said key John William Leo, from Palmyra, New York, near Niagara 
Falls ; George Hunt, a colored man, from the State of Maine ; William 
Huzzy, or Huzzing, of Nantucket ; Charles Robinson, who reported 
himself from Canada; John Radcliffe, an Englishman, who had recently 
been discharged from a man of war; and William Hersey, of Yar- 
mouth, Nova Scotia. A Mr. John Brown went out as mate, but quar- 
relled with Captain Edward Townsend, and was discharged at Cape 
Coast. These, with the three prisoners, were all the crew that left 
New York. They tell me they were thirty-five days on board of the 
man of war schooner "Habanera," near Cape San Antonio; the day 
they came on board they requested permission to communicate with an 
American consul, but were denied the permission. They state, also, 
that they have recently been examined by the Spanish authorities, 
severely questioned and cross-questioned, and Atkins thinks they have 
put down in their declarations more than was related. They also say, 
that the Spanish captain, mate, supercargo, and one other, all went 
passengers in the Jasper from New York. 

•-«'*'•# likewise informed me, that he was aware that four 
different commissions have been sent down to the neighborhood where 
the Jasper landed her cargo, and that four different reports have been 
made that no such vessel has been on the coast ; at the same time he 
* # # * ]" s in possession of all the facts. 

You will perceive the dilemma in which these three prisoners are 
placed under such official reports. 

I have just been informed that the United States sloop of war Al- 
bany is corning into this port. 

Since the above was written I have been on board the Albany, and 
informed Capt. Gerry of the condition of the three men in prison, and 
of the circumstances that led to their imprisonment, &c. Capt. Gerry 
has promised me that he will call at my office to-morrow, examine the 
papers in relation to the subject, and then address the Captain General. 
1 regret very much that I shall not have it in my power to communi- 
cate to you, by this mail, Captain Gerry's course, as the steamer Cher- 
okee will sail to-morrow morning at 8 o'clock ; but everything will be 
laid before you by the earliest opportunity. 

I have the honor to be, sir, with great respect, your obedient ser- 
vant, 

WM. H. ROBERTSON. 

Hon. Wm. L. Marcy, 

Secretary of State. 

Eight o'clock, P. M. 
At the moment of enclosing this communication, I have received a 
letter from the British consul general. 



232 CASE OF THE BLACK WARRIOR, ETC 

Commander J. T. Gerry, U. S. N., to Mr. Dobbin. 

U. S. Ship Albany, Havana, 

July 15, 1853. 

Sir: Upon my arrival at St. Juan de Nicaragua, May 30th, I ad- 
dressed a hasty communication to the commander-in-chief of the home 
squadron, by the steamer Daniel Webster, then under way, but at 
my request remained until I had closed the letter-bag to be sent by 
her. Upon a further acquaintance with the authorities at Gre}'town, 
and agents of the transit company, all of whom made an early call 
upon me, I clearly saw the necessity of a mediator to bring the two 
parties to a mutual friendly intercourse, and better understanding of 
each other's rights and views of subjects in dispute, and expressed 
my readiness to intercede and bring about a better feeling, provided 
each party stated to me all grievances, and consented to be influenced 
by my advice and opinion. The result fully convinced me that both 
parties had acted under strongly excited feelings, and that the one 
was quite as much in fault as the other ; the inhabitants of Grey town 
certainly being entitled to more consideration than the transit company 
had extended to them, by whose invitation, and inducements held out 
to them, many had made large investments for accommodating the 
passengers of this company when the latter were unable to do so, and 
depended solely upon the conveniences to be found in Greytown. I 
am happy to say that the results of my investigations were attended 
with the most favorable consequences. 

On the 5th of May I sailed from St. Juan, leaving all parties ap- 
parently friends, and with a determination of settling every point 
of controversy between them in future by arbitration, and not by vio- 
lence. Shortly after my arrival the mayor informed me, that if I 
desired, a marine who had deserted from the Cyane to be appre- 
hended, he would order him in custody of an officer on board of 
my ship the following morning, which was promptly complied with 
as set forth. From St. Juan to a little past the meridian of Cartha- 
gena, eastward, I experienced very light airs, calms, strong counter 
currents, and off-shore squalls, by taking advantage of which we 
made this distance by the 17th, and then encountered the very strong 
winds which constantly blow along the whole extent of the coast be- 
tween Santa Martha and Carthagena during this season of the year, 
amounting to perfect gales, and obliging vessels to carry a heavy press 
of canvass to hold their own, and gain to windward ; I was six days 
making less than three degrees to the eastward, and unavoidably split 
five or six of my sails, the roping being found defective and actually 
rotten. We continued using every exertion to get to windward, but 
with very little success, until the 27th of May, when finding that we 
had only twenty-eight days of bread and board, and had no prospect of 
reaching La Guayra in less than three, and probably five weeks, I 
reluctantly gave up the idea, and proceeded directly to St. Jago de 
Cuba, the next port of my destination, where we arrived June 30th, 
my crew showing many indications of scurvy, and officers nearly worn 
down by the effects of this trying climate and deprivation of the requi- 
site refreshments. 



CASE OF THE BLACK WARRIOR, ETC 



233 



I ordered a supply of bread baked without delay, and fresh pro- 
visions for the crew, who also had a fine opportunity of supplying 
themselves with fruit, &c. On the evening of July 3d, I received on 
board sixteen hundred pounds of bread, and sailed at daylight on the 
4th for this port. Only one case of scurvy made its appearance among 
my crew, which being quickly attended to was soon cured. I have 
been reducced very low in watch officers, having, after passed mid- 
shipman Seawell was detached by order of the commander-in-chief of 
the Home Squadron just before I sailed, only two watch lieutenants and 
the master ; and, on one occasion, all three of my lieutenants, the sur- 
geon and a midshipman, who had been keeping day watch in charge 
of the deck, upon the sick report. We arrived here on the 13th instant, 
saluted the national flag and admiral as usual, and yesterday paid all 
official visits prior to opening a correspondence with the Captain 
General relating to the confinement of three American seamen, the 
particulars of which I herewith enclose. 

The order of June 9th, from Commodore Newton, was delivered to 
me by the vice consul — the consul being absent in the United States. 

The former consul, before his successor relieved him, had trans- 
mitted to the State Department all the facts in relation to the " Schooner 
Manchester " which had come to his knowledge, but did not corrobo- 
rate the statement made by her captain and mate, and put a different 
construction upon the whole matter. The consular records were sub- 
mitted to my inspection, and from the perusal of all the correspondence 
upon this subject, and communications to the State Department, was 
satisfied that further investigation by me was unnecessary. 

Very respectfully, 1 have the honor to be, sir, your obedient servant, 

JAMES T. GERRY, Commander, 

Commanding U. S. Ship Albany. 

Hon. Jas. C. Dobbin, 

Secretary of the Navy, Washington, D. C. 



United States Ship Albany, Havana, 

My 18, 1853. 

Most excellent Sir : The commercial agent in charge of the con- 
sulate of the United States in this city has read to me the contents of 
the communication that your excellency addressed him on the 16th 
instant, in reply to my official letter to your excellency of the previous 
day. I regret very much that your excellency did not think proper to 
address your reply to me direct, and also that the request made by me 
has not been acceded to by your excellency. 

I am aware that the said commercial agent has made the request of 
your excellency to be permitted to take the depositions of the American 
seamen, Harvey Parks, William Freeburn, and William Atkins, pris- 
oners in the royal jail, under accusation of having infringed the laws 
of Spain, which request was refused by your excellency because they 
had been placed in the hands of the superior court for trial ; still it 
becomes my duty to urge upon the consideration of your excellency 
the importance of that request being granted, to promote the ends of 
justice in my own country, which, by delay, may be defeated. I 



234 CASE OF THE BLACK WARRIOR, ETC. * 

would also state, that I cannot perceive how the taking of such deposi- 
tions can interfere with the proceedings of the superior court in the in- 
vestigation of their case. 

I have the honor to be, very respectfully, your excellency's obedient 
servant, 

JAMES T. GERRY, 
Commander U. S. Navy, commanding; U. S. ship Albany. 
His Excellency 

The Governor and Captain General of Cuba, fyc. 



United States ship Albany, harbor of Havana, 

My 15, 1853. 
Most excellent Sir : The commercial agent in charge of the con- 
sulate of the United States for the port and city of Havana, has given 
me official information that three American seamen, named William 
Atkins, Harvey Parks, and William Freeburn, are now imprisoned in 
the public jail of this city, accused, though very vaguely, of having 
been a part of the crew of a vessel that imported and landed near 
Bailen, in this island, a cargo of negroes from Africa. Upon receipt of 
that information I called at the jail, saw the men, questioned and 
cross-questioned them in regard to their places of nativity, and made 
them relate to me all of the circumstances that led to their imprison- 
ment. The result of my inquiries has been, that I have become per- 

; fectly convinced that they are native-born American citizens ; that 
they are entirely innocent of any intention of infringing either the laws 

1 of the United States or of Spain ; and that those who are in reality the 
guilty parties are somewhere else. For my part, I entertain no doubt 
that some of the parties who got up the expedition to go for the cargo 
of Africans, and who deceived the unfortunate men now imprisoned, 
making them believe that they were going upon a lawful voyage, are 
now in the United States. 

It is therefore of the utmost importance that these parties be tried, 
convicted, and punished for their nefarious and disgraceful proceedings. 
To secure their conviction, it will be necessary to produce in court the 
witnesses that can, under oath, give clear and succinct statements of 
all the circumstances connected with the case. 

The men now in the prison of Havana, and their shipmates, if to be 
found, are the very witnesses that would be required. I feel it a duty, 
therefore, to express to your excellency my opinion of the innocence of 
the seamen Atkins, Parks, and Freeburn, and to request that your ex- 
cellency will order that they be delivered to me, for the purpose of 
placing them at the disposal of my government. I have also been in- 
formed by the above-mentioned men, and from other sources entitled 
to full credence, that the rest of the crew, six men, three of whom are 
said to be Americans, are still remaining upon Cayo Cortes, in the En- 
seneda de Cortes, on the south side of Cuba. As they are within the 

jurisdiction of her Catholic Majesty's dominions, it is expected, and I 
very respectfully request your excellency, that prompt measures be 
taken by your excellency's orders to insure their safety, for it is under- 



CASE OF THE BLACK WARRIOR, ETC 235 

stood that they are in a perilous situation. An early reply to this com- 
munication is respectfully requested. 

I have the honor to be, with much respect, your excellency's* obe- 
dient servant, 

JAMES T. GERRY, 
Commander U. S. Navy, Commanding U. S. ship Albany. 
His Excellency 

The Governor and Captan General of Cuba, &fc. 



Consulate of the United States, Havana, 

July 14, 1853. 

Sir : I beg leave to inform you that there are, at this moment, con- 
fined in the royal prison in this city three American seamen — named 
William Freeburn, Wm. Atkins, and Harvey Parks — who shipped on 
board the^Larque Jasper, E. Townsend master, in December last, at New 
York, bound to Sierra Leone, for which place the vessel was cleared. 
These men state that they never went to Sierra Leone, but to a port in I 
Africa called Elmila, where they discharged some cargo; thence to/* 1 ** 
another port called Cape Coast, where the mate, whose name was 
John Brown, quarrelled with the captain and was discharged ; from 
Cape Coast they went to another place, and thence to another, where, 
soon after they came to anchor, there appeared sundry boats filled with 
negroes, which they at first feared were coming to attack them, but 
soon after found they were slaves to be received on board, when Capt. 
Townsend called the crew and informed them that he had sold his 
vessel, and was about to deliver her over to the Spanish authorities ; that 
he had made a losing voyage, but that he was willing to advance them 
three months' wages, as his part of the voyage was ended, and he ad- 
vised them to return in the vessel ; that if they went on shore they 
would either starve or be assassinated. They, therefore, had no other 
alternative left, and remained on board with the rest of the crew. ^ 
John William Lee, of Palmyra, New York ; George Hunt, a colored 
man, from the State of Maine; William Huzzy, of Nantucket; Charles 
Robinson, of Canada; John RadclifTe, of England, and Wm. Hersey, 
of Yarmouth, Nova Scotia — these formed the original crew from New 
York, and the same that brought her to the island. 

Captain Townsend, they say, left the vessel after a part of the ne- 
groes had been taken on board. The Spanish captain, mate, supercargo, 
and one other, w T ent as passengers in the Jasper from New York. 

On their arrival on the coast of Cuba, the slaves were landed at a 
spot near Bailen, as J have ascertained from other sources ; the barque 
got aground, or, as the men suspect, was put aground purposely, on 
the Punta de la Liana,' or Illana, and there was burnt. The whole 
crew went ashore ; the three men bow in prison took a boat and en- 
deavored, they state, to reach some point where they could find an 
American consul ; but, being without water and provisions, they stopped 
at Cape San Antonio to procure them. Some of the inhabitants 
there reported them to the guard of soldiers stationed near there, 
who immediately arrested them, and from thence they were conveyed 



236 CASE OF THE BLACK WARRIOR, ETC. 

on board the Spanish war schooner " Habanera," on board of which 
they were put in the stocks, and kept thirty-five days ; from thence 
they were transferred to this port on board the Admiral's ship, where 
they were eight days, and afterwards sent to the *royal prison, where 
they now remain confined with criminals, and they complain of having 
been frequently maltreated. On the first notice of their situation, and 
examining into it myself, I became satisfied that they were innocent, 
and that it was important for our government to have their depositions. 
Whereupon I addressed his excellency, the Captain General, asking 
permission to take the deposition of these men at my office, under 
the charge of an officer. To this application his excellency replies 
v/" that he regrets that it is not in his power, as he has turned them over 
to the superior royal court as parties who have been engaged in the 
slave trade, contrary to the laws of Spain. Copies of my communi- 
cation and his excellency's reply have been transmitted to the Depart- 
ments of State for specific instructions on the subject. It seems, from 
information that I have received, that the government here have sent 
down to the neighborhood where the slaves were landed several 
commissions, and the reports returned are that no such vessel had been 
on the coast; thus, no doubt, contradicting the statements of these 
three men on their examination by the government officials. I have 
also information that the rest of the crew are now secreted on the 
Cortes key, in the "Ensenada de Cortes," — three Americans and three 
Englishmen ; that all are liable to be abandoned by the slave dealers 
and left to starve to death, or be made away withf by assassination or 
some other way. They are very apprehensive of this, and by the last 
accounts were in a complete state of desperation. They were alive on 
the 6th instant. 

You have now the subject before you ; all the records of the office 
have been submitted to you, and will be open to you at all times when- 
ever it is required. I again repeat, that it is important for our govern- 
ment to be in possession of the declarations of these three men under 
oath, and equally important that they be released from their painful 
situation. Also, that some steps be taken to rescue the other six men 
from the perilous situation in which they are placed. 

I am, sir, very respectfully and truly, your most obedient servant, 

WM. H. ROBERTSON, 

Vice-Consul in charge of the Consulate of the United States at Havana. 

To James T. Gerry, Esq., 

Commanding United States ship " Albany," 

Harbor of Havana. 



[Translation.] 
[L. S.] 

ALWAYS FAITHFUL ISLAND OF CUBA.— GOVERNMENT AND CAPTAIN GENERAL, POLITICAL SECRE- 
TARY'S OFFICE, SECTION FIFTH. 

I have received your lordship's official letter of yestersday, with 
the letter which the commander of the United States sloop of war 



CASE OP THE BLACK WARRIOR, ETC. 237 

" Albany" addresses me. I have noted the contents of both communi- 
cations, and in consequence you will state to the said commander in 
answer that, as I said to your lordship on the 8th instant, it is absolutely 
impossible for me to interfere in this affair, for it has been submitted 
to the "real audiencia pretorial," (supreme court of judicature,) to 
whom appertains the investigation of the same, conformably to the 
penal law relative to the reprobated African trade, as the individuals, 
William Freeburn, William Atkins, and Harvey Parks, to whom the 
said commander of the Albany refers, belong to the crew of a slaver 
vessel that landed at Bailen the Bozal negroes that she conveyed, and 
was subsequently burnt in the Ensenada de Cortes. The cause is 
actively carried .on by the said superior court, and immediately that 
it shall communicate to me its decision,. I will transmit it to you, as 
well as that respecting the six individuals who are said to be at Cayo 
Cortes, for whose deliverance (extraction) from that place I have given 
the proper orders. 

God preseve your lordship many years. Havana, July 16, 1853. 

VALENTIN CANEDO. 

To the Commercial Agent 

of the United States. 



Mr. Marcy to Mr. O' 'Conor. 

Department of State, Washington, 

My 19, 1853. 

Sir : I transmit herewith a copy of two dispatches received from 
the late consul, and the present acting consul* of the United States at 
Havana, which tend to implicate one or more persons in New York in 
the fitting out of a vessel designed to engage in the slave trade, and 
which actually, after a real or nominal transfer to other parties, suc- 
ceeded in landing a cargo of slaves on the island of Cuba. I will thank 
you to give the subject, embraced in the accompanying communica- 
tions, your immediate attention, with a view to bring the guilty parties 
to justice. An effort will be made to procure the liberation from prison 
of the three American sailors referred to in Mr. Robertson's letter,t in 
which case they will be sent to New York, to be used as witnesses for 
the United States. 

I am, sir, respectfully, your obedient servant, 

W. L. MARCY. 

Charles O'Conor, Esq., 

U. S. District Attorney, New York. 



* See Mr. Robertson's letter of July 13. 

f The letter here referred to is Mr, Robertson's, dated July 6, 1852. 



238 CASE OF THE BLACK WARRIOR, ETC. 

[No. 9.] Consulate of the United States, Havana, 

My 7, 1852. 
Sir : The object of this communication is to lay before you a diffi- 
culty which has occurred at this consulate with regard to the "barque 
"Jasper." This vessel obtained a register in New York, which was 
granted in the name of * * * *, as owner and master. She ar- 
rived in this port on the 17th of December, 1851, from the coast of 
Africa, with a partial lading of palm oil, ivory, &c. Much was then 
said and surmised as to the subject of her cruise on that coast. The 
crew, I believe, claimed extra wages in consequence of her having 
gone there to engage in the slave trade, though this is not so material 
to my present purpose. On the 9th of January last, *. * * * left 
the vessel, first having appointed his mate to be master, and went to 
New York, and has not been at this port since. A Spaniard of this 
city, named * * * *, who is quite celebrated as having been 
long engaged in buying slaves from Africa, employed a workman to 
make extensive repairs on the vessel, he being the responsible party. 
He did not profess to act as agent for * * * *, nor was he con- 
signee, but, as the workman says, (whose testimony I have taken,) 
seemed to be the sole owner. The repairs were made, the vessel com- 
pletely coppered, &c, amounting to about four thousand dollars. In 
the mean time, * * * *, who had been appointed master by * * * *, 
also left the vessel, and no one seemed to have charge of her but the 
Spaniard. He employed another master, and also seamen, and super- 
intended the repairs. The new master (whose testimony I have also 
taken) says he knew no other owner but * * * *, who acted in 
all respects as owner by paying out money for necessary purposes, 
and that even the consignee, * * * *, would pay nothing except 
on the order of****. *### was j n ^g habit of visiting the 
ship almost daily to superintend the repairs ; that he purchased provi- 
sions for the crew ; paid the seamen their wages, &c. In this way months 
passed and nothing was heard of Captain * * * * or his mate. 
Some time in May I received a letter from a Mr. * * * *, of New 
York, by which he informed me that he was * * * * surety in 
his bond given when the register was obtained, and as * * * * had 
ceased to be onwner, he desired me to retain the register. About the 
same time Captain * * * * himself wrote to a citizen of this 
place to the same effect, with a like request. The ship was by this 
time getting ready for sea, but I had intimated to the acting master that 
I was not satisfied as to the ownership. Freights, however, were being 
engaged by this same Spaniard for the coast of Africa. He put seventy 
or eighty barrels of beef on board, and a corresponding quantity of 
bread ; and, finally, application was made to know whether I would 
give the ship her papers. I had become so well satisfied that she was 
Spanish property in reality, although nominally under an American 
owner, that I did not* hesitate to refuse to give her the register. This 
brought up the Spaniard, * * * *, who seemed to be in greet dis- 
tress, and stated that he had made a contract for freights, and would 
lose greatly unless I would permit the vessel to go to sea. He came 
several times, and his great solicitude was really positive proof of his 
ownership. Finally, he produced the contract under which * * * * 



CASE OF THE BLACK WARRIOR, ETC 239 

had been acting as owner, from which it appeared that the money to 
purchase the ship was furnished by a Spaniard, who probably was 
only a nominal party, * * * * being the real one. This instru- 
ment professed to be a mortgage, but it was so drawn as to look like 
something more than a mortgage, and to leave the impression that the 
Spaniard was the true owner, even before condition forfeited. The 
money was to have been paid by * * * * in September, 18-50, or 
1851. The time of payment had elapsed, and * * * * seemed to 
have abandoned the ship. I still refused to let the register go. * * * * 
said he could not get her under the Spanish flag as she was too small, 
the law requiring foreign built ships to be four hundred tons. In this 
dilemma * * * * started to New York to see * * * *, and, a 
few days ago, a * * * * presented himself with a bill of sale from 
* * * *, and demanded the ship's papers. He also brought letters 
from * * * * and * * * *, by which I was informed of the 
conveyance, and also that their bond had been cancelled. My reply 
was, that I had before refused to let the ship go because * * * * was 
not owner, and if this was so, he could of course make no title, and 
unless he could produce the mortgage extinguished, the ship could not 
be permitted to sail as an American vessel. I have given but a gen- j 
eral outline of the evidence, which might be filled out by many other 
circumstances. 

The propositions seem to be clear under the laws of the United 
States : First, that a vessel cannot be American if owned in whole or 
in part by a foreigner, either directly or in trust, often express or secret. 
Second, that an American built vessel, if she has ever been once owned 
by a foreigner, can never become American afterwards. I would 
respectfully refer you to the 1st, 2d, 7th, 16th, and 17th sections of 
the act of the 31st of December, 1792; the additional act of the 27th 
of June, 1797 ; and the act of 27th / March, 1810. * * * * I believe 
has laid his grievances before the Secretary of the Treasury, and has 
applied for relief. I will also forward a copy of this dispatch to the 
Secretary of the Treasury. I should remark, also, that I have no 
doubt that * * * * is not the bona fide ower. The conveyance 
was made to him merely for the purpose of getting the ship out of 
the harbor. I must adhere to my determination, unless instructed to 
the contrary. 

I have the honor to be, sir, your obedient servant, - 

W. L. SHARKEY, 

Hon. Daniel Webster, 

Secretary of Stale of the United States. 



Mr. Ma?ry to Mr. Robertson. 

Department of State, 

Washington, July 20, 1853. 

Sir : Your several dispatches, from No. 34 to No. 41, inclusive, have 
been received. 

In respect to the three American sailors, William Atkins, William 



240 CASE OF THE BLACK WARRIOR, ETC 

Freeburn, and Harvey Parks, now awaiting their trial in Havana, 
charged with having been engaged in the slave trade, you are informed 
that the department entirely approves the course which you have 
taken. 

You will spare no judicious efforts to effect their liberation, and, 
should you not be successful in this, to secure them a fair trial. 

You will perceive by the enclosed copy of a letter addressed by 
this department to the United States district attorney in New York, 
that he has been instructed to prosecute the parties alleged to have 
been interested in the fitting out of the "Jasper" for the purpose of en- 
gaging in the slave trade. It is considered very important that the 
three American sailors, now confined in Havana, should be sent to 
New York, to be used by the government as witnesses for the prosecu- 
tion. 

Although there is no doubt that these sailors were on board the 
"Jasper," yet it is far more important for the ends of justice to bring 
the principals engaged in this atrocious business to punishment, than 
those who acted only in a subordinate capacity, and who, it may 
reasonably be supposed, knew nothing of the intended object of the 
■voyage until the choice was given them either to be left destitute on 
the African coast, exposed to the savage ferocity of the natives, or re- 
turn to America as passengers in the slave ship. 

You will make known to the Captain General the steps which have 
been taken by this government for the prosecution, in this country, of 
those concerned in the transaction, and it is not doubted that he will 
immediately perceive the expediency of using his influence with the 
judicial tribunals to effect the liberation of the imprisoned seamen for 
the object above-mentioned. 

In which event you will place them on board of one of the steamers 
bound to New York, with orders that they be delivered to the marshal 
of the United States on their arrival in that city. 

I am, sir, respectfully, your obedient servant, 

W. L. MARCY. 

W. H. Robertson, Esq., 

In charge of the V. S. Consulate at Havana, island of Cuba. 



Mr. Robertson to Mr. Marcy. 

[No. 44.] Consulate of the United States, Havana, 

July 21, 1853. 

Sir t I beg leave to lay before you a copy of an official letter re- 
ceived from the Governor and Captain General of Cuba, in reply to 
one addressed him by Commander Gerry, of the U. S. ship "Albany." 

Commander Gerry, on being officially informed by me that the three 
American seamen, Harvey Parks, William Atkins, and William Free- 
burn, were imprisoned, called at this office, and examined all the pa- 
pers relating to their case. Subsequently he called at the prison, ques- 
tioned and cross-questioned the men, and, as the result of his exami- 
nation, he formed the opinion that the men were American citizens, 



CASE OF THE BLACK WARRIOR, ETC. 241 

and that they were innocent of any intention of infringing either the 
laws of the United States or of Spain ; that the guilty parties were 
somewhere else — some of them probably in the United States — and he 
thought that it would be important to have their testimony taken in the 
United States. He therefore respectfully informed the Captain Gen- 
eral of his opinion in the matter, and suggested that the men should be 
delivered to him for the purpose of placing them at the disposal of the 
government of the United States. Captain Gerry also notified the 
Captain General that the shipmates of these men (six in number) were 
secreted on the Cortes key, and requested that prompt measures should 
be taken to relieve them from their painful situation. 

You will perceive that the Captain General does not accede to the 
request of Captain Gerry for the delivery of the three men now here, 
and informs me that he had already given the proper orders for the 
others being taken off the Key Cortes. He likewise promises to com- 
municate to me the decision of the court before which the case is pend- 
ing, immediately that the court notify him of the same. 

The six men who were on the Cortes were subsequently removed to 
another key, as I am informed; they were alive on the 7th instant, and 
provisions were conveyed to them in a canoe every two days. Their 
names are John Wm. Leo, of Palmyra, New York ; George Hunt, a 
colored man, from Maine ; Wm. Huzzy, of Nantucket ; Charles Rob- 
inson, of Canada ; John RadclifFe, of England ; and Wm. Hersey, of 
Yarmouth, Nova Scotia. 

Captain Gerry on the 18th instant addressed another letter to the 
Captain General, requesting permission for me to take the depositions 
of the men here. No reply has been received, and Captain Gerry 
sailed this morning, intending to cruise outside of the port for the 
benefit of the health of his crew, there being considerable sickness in 
the city at present. 

I have received the circulars you sent me of changes in the lights on 
the coasts of Norway and Spain. 

I have the honor to be, with great respect, your obedient servant, 

WM. H. ROBERTSON, 
Vice-consul in charge of the U. S. Consulate, 

Hon. Wm. L. Marcy, 

Secretary of State of the United States of America. 



[Translation.] 

[l. s.] 

EVER FAITHFUL ISLAND OF CUBA.— GOVERNMENT AND CAPTAIN GENERAL'S OFFICE, POLITICAL 

DEPARTMENT, SECTION FIFTH. 

I have received your communication of yesterday, together with the 
letter addressed to me by the commander of the U. S. ship "Albany." 
I have carefully perused both documents, and you will accordingly say 
to the commander aforesaid, in reply, that, as I told you on the 8th 
instant, it is utterly impossible for me to interfere in this matter, seeing 
that it is before the superior court of judicature, which has jurisdiction 
16 



242 CASE OF THE BLACK WARRIOR, ETC. 

over it, according to the penal law relative to the prohibited African 
trade, since the individuals (William Freeburn, William Atkins, and 
Harvey Parks) to whom the commander of the "Albany" alludes, be- 
long to the crew of a slaver which landed her cargo of negroes at 
Bailer's, and was afterwards burnt at Key Cortes. 

The trial is progressing rapidly before said tribunal, and as soon as 
the latter shall have communicated its decision to me on the subject I 
will forward the same to you, together with the decision concerning the 
six individuals who are said to be at Key Cortes, whose removal from 
said point I have given proper orders for. 

May God preserve you many years. Havana, July 16, 1853. 

VALENTIN CANEDO. 

The Commercial Agent of the United States. 



Mr. Robertson to Mr. Marcy. 

[No. 45.] Consulate of the United States, Havana, 

July 21, 1853, 6 o'clock p. m. 

Sir : As I was about enclosing my other communication of this date, 
No. 44, an orderly of the Captain General handed me a communication 
from that authority, enclosing a copy of a report sent to him by the 
chief justice of the superior court of judicature of the island. I hasten 
to transmit to you copies both of the Captain General's letter and the 
chief justice's report. 

You will see that it is now entirely out of my power to do any more 
for the unfortunate men in whose favor the correspondence has taken 
place, until I am favored with specific instructions from you. I 
deeply regret that such is the case, for I really believe these men to 
be innocent. 

I have the honor to be, with great respect, your most obedient 

WM. H. ROBERTSON, 

Vice-consul, in charge of the consulate, 
Hon. Wm. L. Marcy, 

Secretary of State, U. S, 



[Translation.] 

EVER FAITHFUL ISLAND 0? CUBA.-GOVERNMENT AND CAPTAIN GENERAL'S OFFICE, POLITICAL 

DEPARTMENT, SECTION FIFTH. 

I have received your communication of the 18th instant, enclosing 
another from the commander of the ship-of-war "Albany,"' both relating 
to the three sailors who are in prison in consequence of their having 
formed part of the crew of a vessel which brought and landed a cargo 
of negroes on the southern coast of this island, whose trial has been 
going on before the supreme court of judicature. In reply I enclose to 
you a copy of a communication which said supreme tribunal has ad- 



CASE OF THE BLACK WARRIOR, ETC. 243 

dressed me on the subject, by which you will perceive that your 
object of taking the depositions of the individuals aforesaid is not attain- 
able, which is perfectly in accordance with the regium exequator that 
is issued to consuls, according to which they cannot exercise any act of 
authority whatever. 

Nor is it possible for me to enter directly into an understanding upon 
any official matters with the commandant of said ship " Albany," the 
laws of the kingdom being opposed to such a course; and you will say 
so to him, with the assurance that my consideration for him, personally, 
must not be understood as being lessened, in any respect, on this ac- 
count. 

With regard to the sum of money which you assert to have been de- 
posited by the sailors aforesaid with the keeper of the prison, I will 
order the latter to deliver the above-mentioned sum into your hands, if 
agreeable to the sailors aforesaid ; and should this sum not be sufficient 
for the purchase of the clothes which you desire to effect, this gov- 
ernment will facilitate the obtaining of the necessary means as a special 
favor. 

God preserve you many years. Havana, July 20, 1853. 

VALENTIN CANEDO. 

To the Commercial Agent 

in charge of the U. S. Consulate. 



Copy of the communication addressed by the Chief Justice of the Supreme 
Court to the Captain General. 

[Translation.] 

Supreme Court of Havana. 

Most excellent Sir : Having made the attorney general (fiscal) 
acquainted with your excellency's communication of the 9th instant, 
containing what was written to you by the commercial agent of the 
United States, who wishes to receive the depositions of the three 
Americans lately arrested, in consequence of the suit which has been 
instituted relative to the landing of a cargo of imported negroes (negros 
Bozales) at Bailen, his lordship represented, and the first chamber of 
this tribunal provided, as follows : 

" Most powerful Sir : The fiscal says that the President has for- 
warded to your highness a communication which has been addressed 
to him by the United States consul, who wishes to receive the deposi- 
tions of the three American sailors arrested at his consulate, in conse- 
quence of this suit, stating that the place where they have been con- 
fined is disagreeable to them on account of the people by whom they 
are surrounded. These sailors having been arrested and tried for hav- 
ing formed part of the crew of a vessel that brought and landed on this 
island a cargo of negroes, imported from the coast of Africa, in viola- 
tion of treaties and of the penal law which has been promulgated for 
the suppression of that inhuman traffic, are subject to the authorities 
and to the laws of Spain, and must be judged and sentenced by the 
former, and in conformity with the latter. The request, therefore, of 



244 CASE OF THE BLACK WARRIOR, ETC. 

the United States consul to have these men taken to his house, for the 
purpose of receiving their depositions, does not appear reasonable. It 
is natural that the place where they have been confined should be dis- 
agreeable to them, as the consul remarks, because a prison cannot be 
a desirable residence for any one, either here or elsewhere ; but the 
sailors aforesaid have been treated in the same manner as those of her 
Majesty's subjects who render themselves liable to imprisonment ; 
that is to say, they have been confined in the public jail ; and when 
they have once become amenable to the Spanish authorities and to the 
Spanish laws, no other mode of proceeding could be adopted in regard 
to them, nor have they a right to ask to be treated differently than her 
Majesty's subjects are treated under similar circumstances. Havana, 
July 17, 1853." 

Agreeably to the representation of the fiscal, in the first part of his 
foregoing answer, let a reply be sent to the President enclosing said 
answer, and this decision. 

Signature, first chamber, Messrs. Buelta, Mojanietta, Antonio Ma. 
del Rio. 

And I transmit the same to your excellency, and for the subserviency 
of the proper object. 

God preserve your excellency many years. July 19, 1853. 

The Most Excellent Seflor Pedro Pizarro. 

The Most Excellent President Governor Captain General. 

True copy: 

LORENZO DE BUSTO. 



Mr. Cowperlhivak to Mr. Marcy. 

Philadelphia, July 21, 1853. 

Sir: The unhappy parents of William Freeburn, one of the three 
unfortunate sailors now confined in prison at Havana, under suspicion 
of being engaged in the slave, trade, have requested me to write a few 
lines to you in their behalf, bespeaking your friendly services in aid of 
their poor son. I willingly comply with this request, beeause I am 
sure that the vindication of the rights of an American citizen, however 
humble, will find no more able advocate than yourself, nor one more 
ready to defend them. I am satisfied, sir, from my knowledge of the 
antecedents of this young man, that the statements contained in the 
letter of himself and colleagues, addressed to you from the prison, un- 
der the date of July 8th inst., and published in the New York Herald 
of the 18th inst., may be fully relied upon. The parents are in very 
humble circumstances, but are honest and of good character, and have 
endeavored to bring up their children respectably. The father has for 
twenty years past been employed by the superintendent of our Fair- 
mount water-works as a laborer, and the mother, who is more particu- 
larly known to me as one of the directors of the public schools, has had 
the care of one of our large school-houses for many years. Their un- 
fortunate son, who learned the trade of house carpenter, left this city 
for New York in November last, in quest of work, which not readily 



CASE OF THE BLACK WARRIOR, ETC 



245 



finding, was induced to ship as a hand on board the " Jasper," bound, 
as he supposed, on a fair and legitimate voyage to Sierra Leone, as is 
fully detailed in the letter already referred to. I will not trespass on 
your valuable time by further details, but will earnestly entreat your 
effective aid on behalf of this unfortunate youth, which I am sure will 
not be extended in vain, and which will not fail to be gratefully ac- 
knowledged by his afflicted parents ; and it would be a great source of 
satisfaction to myself, personally, to learn that there was a chance of 
his speedy restoration to his country and to his family. 

I have the honor to be, with great respect, your obedient servant, 

JOSEPH COWPERTHWAIT. 

Hon. William L. Marcy, 

Secretary of State, Washington. 



Mr. Marcy to Mr. Dobbin. 

Department of State, 

Washington, July 22, 1853. 

Sir : I have the honor to enclose herewith a copy of a letter received 
this morning from J. Cowperthwait, esq., of Philadelphia, and also 
several extracts from despatches received from W. H. Robertson, esq., 
the acting consul of the United States at Havana, in reference to cer- 
tain American seamen, a part of whom appear to be in distress, though 
at liberty near the Cortes key, and others are in prison, charged with 
having been engaged in the slave trade. 

I beg leave respectfully to suggest that the presence of a United 
States vessel would materially assist the acting consul in his efforts to 
effect the liberation of these unfortunate seamen. 

I am, sir, respectfully, your obedient servant, 



W. L. MARCY. 



Hon. James C. Dobbin, 

Secretary of the Navy. 



Mr. Dobbin to Mr. Marcy. 

Navy Department, 

July 25, 1853. 

Sir : I have the honor to acknowledge the receipt of yours of the 
22d instant, with its enclosures, in relation to the condition of certain 
American seamen, late of bark Jasper. 

Agreeably to your suggestion, directions will be given to the com- 
mander-in-chief of the Home Squadron to send a man-of-war, to assist 
the acting: consul at Havana in his efforts to effect the liberation of 
these seamen. 

I am, very respectfully, your obedient servant, 

J. C. DOBBIN. 

Hon. William L. Marcy, 

Secretary of State. 



246 CASE OF THE BLACK WARRIOR, ETC. 

Mr. Bobbin to Mr. Marcy. 

Navy Department, 

July 28, 1853. 
Sir : I have the honor to transmit herewith, for your perusal, a letter 
received at this department from Commander Gerry, commanding the 
United States sloop-of-war Albany, dated at Havana, July 15, L853, 
by which it will be perceived that the instructions to the commanding 
officer of the Home Squadron, in relation to certain of the late crew of 
the Dark Jasper, have been anticipated by the action of Commander 
Gerry. 

I am, very respectfully, your obedient servant, 

J. C. DOBBIN. 
Hon. W. L. Marcy, 

Secretary of State. 



The Vice-consul in charge of the Consulate to Mr. Marcy. 

[Extract.] 

Consulate of the United States, Havana, 

July 28, 1853. 

Sir : I have this morning received from the prison the enclosed com- 
munication from one of the three American seamen. I shall repair to 
the prison to examine into the facts. * * * * 

Since the foregoing was written I have been to the prison, found 
Free burn in the hospital, quite sick with fever ; the other two in the 
situation which Atkins in his letter describes. 
With great respect, &c. 

The VICE CONSUL, 
in charge of the Consulate of the United States, 
Hon. W. L. Marcy, 

Secretary of Slate of the United States, Washington. 



Havana, July 26, 1853. 

Dear Sir : We should like very much to speak to you because we 
are very badly treated here, and hardly can stand it any longer with- 
out incurring the danger of losing our temper and committing some rash 
act, and thus bringing ourselves into still greater difficulties ; they treat 
us in fact worse than dogs ; we have to do nearly all the dirty work for 
the rest, and are robbed and insulted in every possible way. When 
we came here first we were asked to pay four dollars, or help to do the 
dirty work. Accordingly we wrote to the head jailor Don Pedro for 
the money, but he would not give it to us, and said that he had deliv- 
ered it into the hands of the government; we were in consequence obliged 
to do the work ; we never got any money until two days ago. 

Freeburn is at present in the hospital very bad with fever. Parks 
was there last week, and feels very sick still, but he would not stay 



CASE OF THE BLACK WARRIOR, ETC 247 

there because they were starving him ; he felt so weak this morning that 
he was unable to do the work, and told them so when they wanted 
him to work; but instead of excusing him from the work, the man 
whom they call Cabo de Yambuja rushed at him, and struck him five 
or six times with the butt-end of a broom as hard as he could, and even 
drew a knife on him, which he dropped however. It is not permitted to 
have knives here, and we could complain of this to the head jailor, Don 
Pedro ; but if we did they would certainly stab us during the night. 
But if you would speak to Don Pedro, there might, perhaps, be effected 
a change for the better; you might insist on our not working any longer 
like slaves. 

Hoping to have soon the pleasure of seeing you, I remain, dear sir, 
your obedient servant, 

WILLIAM ATKINS. 



Mr. OP Conor to Mr. Marcy. 

Southern District of New York, 

V. S. District Attorney's Office, July 29, 1853. 

Sir : Your communication, accompanying copies of two dispatches 
received from the late consul and the present acting consul at Havana, 
has been received. v 

The department seems not to be aware that the bark Jasper was 
seized at this port on the 19th October, 1852, charged with sailing under 
a false register, she .belonging, as we supposed and asserted, basing 
our opinion upon information derived from * * to a Spaniard 
named * *, mentioned in Judge Sharkey's dispatch, while 
at the same time her papers bore the name of * * ; the bark 
was detained in custody for some time, but was at length bonded in 
the sum of ten thousand dollars, and afterwards, as I am informed at 
the custom-house, departed secretly without any clearance or papers. 
I had intended bringing on the case for trial at the last term of the court, 
but was prevented as well by the press of criminal business as by the 
absence of * * and * *, who are absent on a voyage to 
California, but are soon expected to return. In the mean time, I have 
been diligently seeking the parties interested in fitting out the vessel, 
and getting such information as may be desirable and necessary. * * 
has, as I have reason to believe, recently been here. If he is still in 
the city, or can be found, I will endeavor to procure sufficient evidence 
to justify the commissioner in issuing a warrant, and will then cause 
his immediate arrest. I would further respectfully suggest the impor- 
tance of procuring the release of the three sailors confined at Havana, 
at as early a day as possible. 

I have the honor to be, your very obedient servant, 

CHARLES G'CONOR, 

United States Attorney. 

Hon. William L. Marcy, 

Secretary of State, Washington. 



248 CASE OF THE BLACK WARRIOR, ETC 

Mr. Mann, Acting Secretary, to Mr. O' Conor. 

Department of State, 

Washington, August 2, 1853. 

Sir : I have to acknowledge the receipt of your letter of the 29th 
ultimo, and to inform you that a copy of it has been sent to the acting 
consul of the United States, at Havana, with renewed instructions to 
send immediately to New York, in the event of their liberation, the 
three American seamen, lately belonging to theMbark " Jasper," to be 
used as witnesses on the trial there of the parties alleged to have been 
concerned in the slave trade. 

I am, sir, &c, 

A. DUDLEY MANN, 

Acting Secretary* 
Charles O'Conor, Esq., 

U. S. Attorney, New York. 



Mr. Robertson to Mr. Maraj. 

[Extract.] 

[No. 51. j Consulate of the United States, Havana, 

August 3, 1853. 

Sir : I had the honor to receive, on the 29th of July, yours of the 
20th of said month, accompanying your instructions to the district attor- 
ney in New York ; and although the Captain General bad made known 
to me that he could not either permit me to take the depositions of the 
three seamen of the late bark Jasper, now in prison, or deliver them 
up, for the purpose of sending them to New York to be used there as 
witnesses for the prosecution of the parties that were concerned in the 
fitting out of the "Jasper" for the slave trade, I avail myself of the 
instructions contained in your dispatch to urge upon his excellency 
the expediency of their being delivered up, laying before him on the 
same day (29th July) your views and wishes on the subject. I have 
not yet been favored with a reply to my communication, but received 
a few minutes since an official letter from his excellency, dated on 
yesterday, a copy of which I enclose herewith. You will be able to 
form an opinion upon the contents of his excellency's letter, wherein I 
refer you to my communication of the 21st ultimo, No. 44, wherein I 
stated that the six men who had been on themey " Cortes" had been 
removed to another key; the name of this other key I believe is " Cayo 
Felipe." I obtained this information from * *, who had it from 
the same party that first communicated to him the circumstances con- 
nected with the landing of slaves by the "Jasper," the burning of this 
vessel, and the fact of the six men being secreted at " Cayo Cortes." 
I have seen both the reports to the said * *. 

The letter referred to by the Captain General as received from me, 
dated 15th July, merely enclosed a letter to him from Captain Gerry, 



CASE OF THE BLACK WARRIOR, ETC 249 

of the Albany. It was this officer who notified the Captain General 
that the six men were secreted at " Cayo Cortes." 

The latter part of the Captain General's communication of the 2d 
instant I do not understand, for the " alcalde," or chief jailor delivered 
to me yesterday the money belonging to the seamen Freeburn, Parks, 
and Atkins ; the amount paid over were the same (with the difference 
of a dollars or so) as reported to me by the prisoners themselves. * * 
I have the honor to be, sir, your most obedient servant, 

WM. H. ROBERTSON, 
Vice-consul in charge of the Consulate. 
Hon. William L. Marcy, 

Secretary of State. 



[Translation.] 
[L. S.] 

EVER FAITHFUL ISLAND OF CUBA.— GOVERNMENT AND CAPTAIN GENERAL'S OFFICE, POLITICAL 
DEPARTMENT, SECTION FIFTH. 

On the 2d instant, I informed you of what the three North American 
sailors confined in jail had said to the alcalde of the same, concerning 
the twelve ounces which the latter has in his possession belonging to 
said individuals, who are waiting for the result of their trial in the 
royal pretorial court, in consequence of their having formed part of the 
crew of a slaver which was burnt after having discharged her freight 
of negroes, which she had brought from Africa, at Bailen. 

I accordingly make the same known to you, in reply to your com- 
munication of the 29th of July last, relative to the matter ; reiterating 
to you, moreover, that I regret not being able to comply with the re- 
quest with regard to the wishes expressed by the Secretary of State of 
your government, as mentioned by you in your communication afore- 
said, that the three sailors in question might be sent on to New York, 
because I am not at liberty to meddle with any of the proceedings ap- 
pertaining to the jurisdiction of the court aforesaid, before which I will, 
however, lay your letter for its decision, in order that I may, in due 
time, convey the same to you. May God preserve you many years. 
Havana, August 13, 1853. 

VALENTIN CANEDO. 

To the Commercial Agent 

in charge of the Consulate of the United. States. 



Mr. A. Dudley Mann, acting Secretary of State, to Mr. Robertson. 

[Extract.] 

Department of State, 
Washington, August 3, 1853. 

In the event of your being successful in effecting the liberation of the 
American sailors now confined in Havana, charged with having been 



250 CASE OF THE BLACK WARRIOR, ETC. 

concerned in the slave trade, you will be pleased to cause them to be 
conveyed to New York, and surrendered to the marshal, for the pur- 
pose indicated in the letter of Mr. O'Conor, United States attorney. 

In case they should be brought to trial in Havana, you will urge 
upon the proper authorities the obvious propriety of using one or more 
of them as witnesses, chiefly for the purpose of showing that these men 
were ignorant of the object of the voyage of the " Jasper" to the coast 
of Africa till the transfer of the vessel took place ; that their remaining 
on board was a matter of necessity ; and, more especially, that the 
parties in Havana, alleged to have been principally instrumental in 
fitting out the "Jasper," may be brought to punishment. 

If there is a sincere desire to convict the slave dealers, this reason- 
able request cannot be refused. 

I am, sir, respectfully, your obedient servant, 

A. DUDLEY MANN, 

Acting Secretary. 



Mr. Robertson to Mr. Marcy. 
[Extract.] 

[No. 54.] Consulate of the United States, Havana, 

August 29, 1853. 

In my dispatch of August 3, No. 51, (which is in your possession,) 
I stated that I had not been favored by the Captain General with a 
reply to my communication to his excellency of the 29th July. His 
reply, dated on the 13th of August, reached me on the 16th — a copy 
of it I now lay before you. He reiterates his former assertions, to the 
/ effect that he cannot interfere in the matter, and promises to lay my 
letter before the court, and to transmit to me the court's decision upon 
the same. Since then I have heard nothing from him. 
I have the honor, &c, 

W. H. ROBERTSON, 

Acting Consul. 



Mr. Robertson to Mr. Marcy. 

[No. 56.] Consulate of the United States, Havana, 

September 24, 1853. 

Sir: Referring to my last communication, dated 13th instant, No. 
55, I beg leave to inform you that, on the 15th, I received an official 
letter from the Governor and Captain General of the island, notifying 
me that I could take the depositions of the three American seamen, 
(who have been in the jail of this city since the 2d of July, and de- 
tained by the authorities of the island since May,) in the presence of 



CASE OF THE BLACK WARRIOR, ETC. 251 

one of the justices of the superior court, with the attendance of one of 
the government interpreters, on the 17th, at the hall of the said court. 
I therefore prepared beforehand a set of interrogatories to be pro- 
pounded to the prisoners, and presented myself in the court-room at 
the appointed day and hour. Then, outside of the room, I found the 
prisoners under charge (as customary here) of two soldiers, with mus- 
kets and bayonets fixed. The justice and interpreter were present. 
There was some conversation between myself and the judge, who 
thought that he was to receive the depositions. I made known to him 
that, if they were taken by any one but myself, they would be of no 
use in the United States. He then allowed me to proceed to question 
the first prisoner brought in, and, before I had got through, the judge 
assured me that the communication he had received was worded in 
such a manner that he did not feel confident that his course in allowing 
me to take the depositions would be approved of by the Captain Gen- 
eral ; and he proposed that I should finish examining the first witness, 
and then stop, until he could see the Captain General in the evening, 
and ascertain if no objection would be made to my course. To this 
proposition I assented. That was on Saturday. On Monday follow- 
ing, the judge informed me that the Captain General had given his 
assent to my continuing to take the depositions, as he had no desire to 
throw obstacles that would delay the ends of justice in the United 
States. I therefore received the two other depositions on Tuesday and 
Wednesday. 

I now have the honor to enclose you the whole proceedings. Many 
of the interrogatories (having been prepared beforehand) were neces- 
sarily superseded, and I fear the answers contain much irrelevant mat- 
ter ; but the subjects they were taken from being seamen, who are 
prone to give long stories, I was afraid that, if I omitted any part of 
their statements, something important might be accidentally left out. 

I have furnished the judge of the superior court here, at his request, 
a translated copy of the interrogatories and depositions. He, at first, 
thought it might be proper that he should subscribe his name to the 
papers ; but, at last, concluded, after consultation as I understand with 
his colleagues, that it was not necessary or important. 

I do not know yet when these unfortunate men will be released. 
Your obedient servant, 

WM. H. ROBERTSON, 



Hon. William L. Marcy, 

Secretary of Stale, Washington D. C. 



Acting Consul. 



Questions or interrogatories to be propounded by William H. Robert- 
son, acting consul of the United States of America at the city of Ha- 
vana, to William Atkins, William Freeburn, and Harvey C. Parks, 
seamen reporting themselves as Americans, who are at present de- 
tained in Havana by the authorities of Havana, charged with having 
formed part of the crew of the bark Jasper, which, it is said, landed 
a cargo of negroes from Africa at or near a place called Baylen, on 



252 CASE OF THE BLACK WARRIOR, ETC. 

the south side of the island of Cuba, and that, after the landing was 
effected, the vessel was burnt. 

1. What is your name, age, profession, or trade? Which is the 
place of your birth, and which of your residence ? When were you 
last at the place of your residence ? Give us the names of some re- 
spectable person or persons who know you, and can give information 
about your character and conduct, from his, her, or their own 
knowledge. 

2. In what vessel did you come to the island of Cuba? Where and 
when did you join her, and in what capacity ? Tn what street and 
house were you living in New York when you shipped on the Jasper ? 
State the name or names of your landlord or landlords, landlady or land- 
ladies. State also the name or names of the shipping-master or ship- 
ping-masters that shipped you on the articles of the Jasper. Where 
did he or they live in New York ? Did you yourself subscribe your 
name to the articles ? Did you ascertain the conditions of your ship- 
ment, and what were they ; that is, to what port or ports was the ves- 
sel going ? Was she to come back to New York or any other part of 
the United States, or not ? Was any part of Cuba one of the places at 
which the vessel had to touch ? Was or were there any person or per- 
sons connected or concerned in the bark Jasper present at the time you 
entered your name on her articles ? If yea, give his or their names. 
State also the name of the captain that was in command of the Jasper 
when she sailed out of New York. Say if you were acquainted with 
Captain Townsend before you went on board the Jasper. What were 
your wages per month, or for the voyage? 

3. Did you, or did you not, when you were going on board, some- 
where near the wharf, see one or more females in a carriage, who asked 
you certain question or questions ? What were the questions, your 
answers, and what did she or they finally say to you ? Did you see 
Captain Townsend speaking to the female or females aforesaid before 
you went on board ? Do you know the name or names of the female 
or females referred to above ? 

4. Do you know Capt. Wade, who formerly commanded the Jasper? 

5. Do you know a Spaniard by the name of Don Jose Mora ? If 
you do, when did you see him last ? Was he in any way, to your 
knowledge, connected with or concerned in the barque Jasper, or the 
object of her voyage ? If he was, state how. Did he proceed from 
New York in the vessel ? 

6. Did Captain Townsend continue in command and exercise con- 
trol over the bark Jasper to her arrival in Cuba, or not ? Relate all 
the important circumstances connected with the voyage of the Jasper, 
from her sailing from New York to her arrival at Cuba. State the 
places where she touched ; what operations were done at each place ; 
what cargo she brought to Cuba; whether she landed her cargo or 
not — where and how ; and what became of her afterwards. Say 
whether she was anywhere near Sierra Leone. 

7. After Captain Townsend left you, or previous to his leaving, and 
you discovered that slaves were brought on board, and the Spanish 
captain had assumed command of the Jasper, did you demand your 
discharge from the vessel ? Was the discharge offered to you, and by 



CASE OP THE BLACK WARRIOR, ETC 253 

whom ? If a discharge was offered you, why did you not accept it 
and leave the vessel? "" Or, if you demanded it, and it was not granted, 
what reasons were given you, and by whom, for not granting it V Were 
you paid your wages ? Where, by whom, for what time? And state 
all the circumstances connected with the payment thereof. If your 
wages were not paid, say, did you demand them, and why, if you 
know, were they not paid you ? 

8. What treatment did you receive on the Jasper previous to and 
after the Spanish captain had assumed command? State the names 
(if you know them) of the persons who, after Captain Townsend left 
her, seemed to have charge of the Jasper and her cargo. Were you 
or were you not forced to work for the vessel after she was under 
Spanish charge ? Did you perform service ? If yea, say if you were 
or not offered remuneration for your services. If yea, by whom ? Did 
you or did you not accept the offer? If accepted by you, was it 
fulfilled by the other party, and where ? 

9. Was the American Hag used by the Jasper after Captain Town- 
send made known to you that he had sold his ship ? If not, what flag 
was used on the voyage to Cuba, and during the time she remained on 
the coast? 

10. After the Jasper was burnt, what did the crew and persons on 
board do ? State the name (if you know it) of the place where you 
landed. How long were you there ? State all particulars connected 
with your stay on the key, the treatment you received, and how you 
came, to be found in a boat at Cape San Antonio. How many of the 
original crew were with you on the key ? What were their names, 
what their country ? And give us all the information you know about 
them. Why did not the other men accompany you when you left the 
key, and how long after the burning of the Jasper was it that you left 
the key ? 

11. Where were you conveyed when taken up at Cape San Antonio? 
State all the circumstances of your capture. How long were you de- 
tained, from the moment of your capture at the Cape to the moment of 
arrival on board the Spanish Avar schooner Habanera ? What ques- 
tions were propounded to you on board that schooner? By whom? 
Was a good interpreter used, or did the officer who interrogated you 
do it in English ? Are you acquainted with the Spanish language ? 
What account did you then give of yourself? Was not your report a 
false one ? If so, what induced you to make a false report ? How 
long were you on board the schooner, and how were you treated ? If 
not well treated, was it occasioned by bad or obstreperous conduct on 
your part? When did you leave that schooner, and how, and where 
were you taken to ? How were you treated on board the man-of-war 
in the harbor of Havana, and till what time did you remain on board? 
When removed from the vessel, where were you conveyed ? How long 
have you been in jail? How have you been treated whilst in jail? 
If well treated, or badly treated, by whom ? 

12. Have you ever demanded your release and liberty? Of whom, 
and what were the replies ? 

13. Have you been examined at Havana by the authorities of this 
government since your capture ? How many times ? Have you been 



254 CASE OF THE BLACK WARRIOR, ETO. 

informed by the authorities of the object of your imprisonment ? If 
you have been examined, have your declarations been the same as you 
have made in the present examination? 

14. State any thing, or things, further connected with the Jasper or 
her cargo, or voyage, or yourself or shipmates, that, to your knowledge, 
has occurred, and you have not mentioned in answer to the preceding 
interrogatories. 



[l. s.] 

siempre fiel isla de cuba.— gobierno y capitania general, secretaria politica, seo 

CION 5A. 

Consecuente a los deseos manifestados por V. de que se le permi- 
tiese tomar declaracion a los tres marineros Americanos presos, perte- 
necientes a la tripulacion del negrero que alijo en Bailen, por concep- 
tuarlo V. necesario para perseguir judicialmente en los Estados Unidos 
a los armadores de dicho negrero, he dispuesto como gracia especial 
por la causa que la motiva, y en vista de lo proveido de conformidad 
por la rl. sal a la. de justicia de la audiencia pretorial, en virtud del 
oficio de V. de 29 del ultimo Julio que le transmite, segun dije a V. en 
13 del ppdo. Agosto, que el dia 17 del corriente, a las 12 de la mafiana, 
sean examinados los tres marineros espresados ante el Sor. Oidor Dn. 
Leon Herques, con la asistencia de V. y de uno de los interpretes de 
gobo., en el referido tribunal. 

Lo que digo a V. e fin de que ocurra a la real audiencia mencionada 
el dia y hora designado con el objeto esplicado. 

Dios guarde a V. muchos anos. Habana, 15 de Setiembre, 1853. 

* VALENTIN CANEDO. 

Sor Agente Comercial, 

encargado del Conmlado de los E. E. U. U, 



Consulate of the U. S. of America, Havana. 

I, William H. Robertson, acting consul of the United States of 
America at Havana, in the Island of Cuba, do hereby certify that the 
copy of a communication, written on the reverse page, is a true and 
correct copy of an original communication by me received from the 
Governor and Captain General of this island, and signed by him, which 
original is on file in this consulate. 

In testimony whereof I hereunto subscribe my name, and affix the 



[l. s.] 



seal of this consulate at Havana, this seventeenth day of 
September, A. D. one thousand eight hundred and fifty-three. 

WM. H. ROBERTSON. 



Consulate of the United States, Havana. 
Be it known, that the Governor and Captain General of the island of 
Cuba having, at my repeated requests, consented to allow me lo re- 



CASE OF THE BLACK WARRIOR, ETC 255 

ceive the depositions of three men, who say that they are seamen and 
American citizens, (which their appearances and other circumstances 
seem to confirm,) and named William Atkins, William Freeburn, and 
Harvey C. Parks, who have been for some months, and are still, in the 
prison of Havana, charged with having formed part of the crew of a 
vessel named the Jasper, which landed negroes from Africa at or near 
a place called Baylen, on the south side of the island of Cuba, and 
with having, together with the rest of the crew, after effecting the 
landing of the negroes, burnt the vessel; I William H. Robertson, 
acting consul of the United States of America for the port and city of 
Havana, in the island of Cuba, availing myself of the permission afore- 
said, (which will appear in a copy authenticated by me, and hereto 
accompanying, of a letter from said Governor and Captain General to 
me addressed,) have, on this seventeenth day of September, in the 
year of our Lord one thousand eighth hundred and fifty- three, at Ha- 
vana, in the presence of Don Leon Herques, one of the justices of the 
superior court of the district, and of one of the interpreters of the gov- 
ernment of the island, commenced to receive the depositions of the 
said William Atkins, William Freeburn, and Harvey C. Parks, severally, 
and under solemn oath to make true answers to the various interroga- 
tories that will be propounded to each and every one of said men by 
me, which interrogatories are hereto accompanied, and written on six 
pages, marked 1 to 6, both inclusive. 

William Freeburn being sworn, doth depose and say as follows : 
1. To the first interrogatory he saith : My name is William Freeburn ; 
24 years old; carpenter by trade; born in Philadelphia; residence 
Philadelphia. I was in Philadelphia for the last time last December, 
about the first of said month. George Geddies, in Willie Grove, about 
12 miles from Philadelphia.' 

j 2. To the second interrogatory he saith : I came to Cuba in the 
barque Jasper; I joined her in New York, on the 12th of December 
last, as a sailor before the mast ; I was living, I think, in Oak street; 
my landlord was Winehold ; I cannot say for certain who were the 
shipping masters that shipped me, but I think it was Clark and Dean. 
I did not go to the shipping office ; I signed the articles of the Jasper ; 
I understood that she was going to the coast of Africa, Sierra Leone 
being the first place, on a trading voyage for palm oil, and then come 
back to the United States. The vessel had not, to my knowledge, to 
touch at any part of Cuba; there was no one concerned or connected 
with the vessel present at the time I entered my name on the articles, 
but William Atkins and William Leo. The captain that was in com- 
mand of the Jasper was named E. Townsend, which I saw written on 
a bag; Iwas not acquainted with Captain Townsend before I went on 
board. I was to receive 15 dollars per month. 

3. To the third interrogatory he saith : I saw one female in a car- 
riage. She asked if I and two or three others, that had shipped for the 
voyage and were there, were looking for the Jasper; she said the 
captain would be there in a few minutes. I saw Captain Townsend 
speak to the female when he was on board and passing by ; he shook 
his handkerchief to her and bade her good-bye. I do not know the 
name of the female. 



256 CASE OF THE BLACK WARRIOR, ETC. 

4. To the fourth interrogatory he saith : I do not know Captain 
Wade. 

5. To the fifth interrogatory he saith : I do not know the person 
called Don Jose Mora. 

6. To the sixth interrogatory he saith : Captain Townsend com- 
manded and controlled the Jasper only to the time that slaves were re- 
ceived on board on the coast of Africa. When we reached the coast of 
Africa the mate told us we were not going within a thousand miles of 
Sierra Leone. The mate was asked the reason, and he answered that he 
thought the supercargo had changed his mind ; the supercargo was a 
Spaniard. This is all I know of him, except that when Captain 
Townsend left the ship, he took command of the ship. There were 
four Spaniards on board when we left New York ; they came on board 
at the wharf where I saw the female — two of them as passengers, one 
as supercargo and the other as his nephew. The Jasper touched first 
at Eimina, discharged some cargo there, and the supercargo, with his 
nephew, went on shore. We sailed from thence ; the nephew of the 
supercargo came on board, the supercargo remaining on shore, and pro- 
ceeded to Cape Coast ; discharged some cargo there, and took on board 
100 bales of tobacco and some elephant's teeth. The captain and mate, 
J. Brown, quarrelled at this place ; the mate was discharged and went 
ashore. He was discharged for drinking liquor, and the captain subse- 
quently said he considered his life was not safe as long as the mate was 
on board. From thence we went to Little Mina ; we were there boarded 
by an English war-steamer ; we were under American colors ; we dis- 
charged there some pipes of rum, took in some ducks and hogs, and filled 
our water-pipes. We asked the reason why all the water-pipes were filled 
there, when our next place of destination was so near, being only eight 
days sail ; we understood our next place would be Laguna. We were 
answered, that the water further down the coast was brackish, and not 
fit to drink. Some of my shipmates, after the British steamer had 
boarded us, asked the captain of the Jasper for some clothes. He an- 
swered, that we were to meet the steamer at Laguna, and there he 
would exchange rum for some stuff to make clothes with. In a short 
time after the steamer boarded us ; we started, as we understood at the 
time, for Laguna; we did not go to Laguna ; in three or four days we 
went into a place, the name of which I know not, though it sounded 
something like Wiggie-Waggie. It was just dark when we got into the 
place and let go the anchor; the next morning a white man, that was 
either an Englishman or American, as he spoke very good English, came 
aboard, shook hands with Captain Townsend, and went into the cabin; 
he came out in a few minutes, and in the same boat that he came out 
in, took fifty bales of the tobacco that we took in at Cape Coast ; we dis- 
charged some pipes of rum into some canoes ; the same man that came 
aboard first came back with a letter for Captain Townsend ; he took 
the rest of the tobacco, and, as he went over the side, Captain Town- 
send told him to tell Mr. Hutton he did not want a receipt for that 
tobacco ; we put the hatches on then, and did not discharge or take 
in anything more. In about half an hour, or an hour, we saw twenty 
or thirty canoes or more ; we asked what the canoes were for, as we 
thought they were coming for rum ; and Radcliffe, who was acting 



CASE OP THE BLACK WARRIOR, ETC. 257 

second mate, went aft and asked if he was to take off the hatches ; a 
Spaniard named Loper, who was afterwards second mate, said he did 
not know what they were for, but that he knew they were not coming 
for rum ; he said that they wanted to trade for palm oil, but that the 
supercargo had engaged for more palm oil already than he wanted ; 
the canoes went down the coast, and did not come to the ship ; the 
men went about their work till dinner-time ; after dinner Captain Town- 
send gave orders to get the ship under way ; we dropped down about 
twenty or thirty miles, as near as I could judge, and we saw all these 
canoes which we thought must be the same as we saw in the morning; 
when we got to about opposite to where the canoes were, we let go 
the anchor ; the Spaniard named Loper was standing on the deck ; we 
asked him if they were not the same canoes, and what they were for? 
He said he did not know ; the canoes were coming towards the ship, 
and all were standing on the forcastle looking at them ; the boy, John 
William Leo, came running forward, and said, "By G — d! there must 
be something up ;" he said he heard Captain Townsend speak to Mr. 
Hussy, who was the second mate before the chief mate was discharged, 
that his wages came to ninety-six dollars ; we did not know what to 
think at the time ; Radcliffe was next called into the cabin ; Atkins 
and myself were called to carry some bags forward ; we had carried 
but two or three, when we were called into the cabin, together with 
Charles Robinson ; the captain (Townsend) was sitting at the table 
with a pile of money before him ; he asked us if we knew what was 
up ; we hardly knew what to answer him, for we saw slaves coming 
in at the time ; Captain Townsend said, / have sold my ship and am 
going to pay you off ivith three months' extra pay ; we asked him why he 
had not let us know it before ; Captain Townsend said he did not know 
it till yesterday ; that he had sold his ship yesterday afternoon ; he 
said they were bound to take us home in the ship as passengers ; he 
said he could not protect us at this place, as we were five hundred 
miles from either American or English consuls ; we went out and told 
Harvey Parks, who was sick at the time in the forecastle ; he would 
not believe us at first ; we at last convinced him by showing him our 
money ; we had been on board about two months and a half, and sixt} r - 
nine dollars were paid to us ; a short time afterwards Parks came out 
of the cabin, and I asked him what he intended to do"? He said, go 
ashore, of course ; he went to the gangway and beckoned to a canoe 
that had discharged her negroes on board ; the Spanish supercargo 
was standing at the brake of the poop at the time, and beckoned 
with his hand to the canoe not to come alongside ; Captain Townsend 
was standing then in the waist, and said "damn it, men, don't act like 
children ;" we did not see when Captain Townsend went ashore, 
but the boy saw him and told us. In the mean time the Spanish 
mate, and second mate, and a. white man from the shore, were 
employed taking in negroes on board. After the slaves were all on 
board, the Spaniard who acted as second mate, generally called Loper, 
was employed, in unshackling the chain ; the supercargo said that he 
was now captain, and that, if we would work the ship he would give 
us fifty dollars a month ; he also told us, if we went on shore in the bush, 
if we were not killed before morning, that we should be starved to 
17 



258 CASE OP THE BLACK WARRIOR, ETC 

death. We, therefore, were afraid to go on shore, and thought it best 
to work the ship. We went to work, got the ship under weigh, and 
one man was placed at each hatch, (there were three hatches,) and one 
on the forcastle on the look-out ; one was at the masthead in the day 
time ; the rest of the men were made to sleep on the poop ; as they 
would not permit us to sleep in the forecastle. We were very badly 
treated, and kept at work all the time. Loper struck Harvey once 
with a pump, and then pulled out his knife and made a pass with it at 
him, when Harvey caught his wrist. In the mean time, the knife 
dropped ; Harvey dragged him up on deck; the old second mate, Mr. 
Huss}^, went up and took the wheel, and Radclifte came forward and 
struck the Portuguese, whose name was Domingo, for giving the knife * 
to Loper. The first mate came forward first, and then the captain ; 
and the first mate caught hold of Harvey Parks's arm, so that he should 
not hit Loper ; the captain went between the ones that were fighting, 
and told the first mate to go aft and get the pistols, and forced us to go 
to work. The second mate, at another time, also struck Atkins for 
not going to the wheel. We sailed in February for Cuba, where we 
arrived in the latter part of April. The cargo brought from Africa 
was landed at a place about seventy or eighty miles to the eastward of 
Cape Antonio. There were some high grounds near the place where 
we were. The slaves were landed in two boats of the ship, and several 
boats (three, I think) from the shore. One negro died on the passage. 
The Jasper was aground at the time ; one day was spent in trying to 
get her off, and all the rum and water that was in her was stove to 
lighten her. A party of Spaniards from the shore came on board the 
next night to help the vessel off; we made every effort to get her off; 
we were in the boat towing the large boat that had the anchor ; we 
were told to come on board, that they were going to fire the ship ; we 
were told to put our things in the boat, and go with the second mate, 
(Loper.) We got all our things out into the boat, and were tow r ed 
about twelve miles above the place where the slaves were landed. 

7. To the seventh interrogatory he saith : I asked for my discharge, 
and the captain (Townsend) said he could not protect us; I was paid 
my wages 03^ Captain Townsend. 

8. To the eighth interrogatory he saith : I have explained the treat- 
ment we received on board ; the captain was named Jos6, the chief 
mate Dionisio, (but generally called Dennis,) and Loper ; we were 
forced to work in the vessel after she was under Spanish charge ; I 
did do duty ; I was offered remuneration ; I received seventy-eight 
dollars after the slaves were landed. 

9. To the ninth interrogatory he saith : The American flag was not 
used ; the Spanish flag was used. 

10. To the tenth interrogatory he saith : After the Jasper was burnt 
the crew remained on shore, doing nothing ; ten days after the captain 
came and paid us off", and said that a schooner would be there in five 
days to take us to Havana ; we were not ill-treated while on shore. 
The following are the names of the original crew that were with me: 
William Hussy, Charles Robinson, Robert Radcliffe, William Hers^y, 
William Atkins, Harvey C. Parks, John William Leo. On the 15th 
day after we were on the place, which was a key, no schooner came 



CASE OF THE BLACK WARRIOR, ETC. 259 

for us; the Spanish first mate was close by the place; we asked him 
if nothing was coming to take us away; as far as we could understand, 
he said he had nothing to do with us, and we might go where we 
liked ; that same night we took the long-boat, after the Spaniards 
were asleep, (the boat had been off the Ja§per,) got a couple of boat's 
masts, a couple of sails, and two jars of water, and a saw, and the 
top-sail halliards of the ship; we put out to sea with the expectation 
of being picked up by a merchantman or a man-of-war; when out 
about two days, we put into the shoie to get some provisions; when 
we landed, a man came to us, and asked what we wanted ; we said 
we wanted to buy some provisions ; he asked where we were from, 
and we answered, from Jamaica. Whilst getting the provisions, several 
soldiers came to the house. Radcliffe was an Englishman; Atkins is 
an American; Parks is an American; Huss} 7 hailed from Nantucket; 
Hersey was a Nova Scotian; the cook, whose name. I have omitted 
before, was named George Hunt, an American; Robinson was a 
French Canadian; and Leo was an American. The reason why the 
others did not come with us, was, that Radcliffe was very sick, and 
Robinson was his friend and would not leave him ; Mr. Hussy and 
Hersey did not know of our plan ; the rest, after agreeing to come with 
us, declined. 

11th. To the eleventh interrogatory he saith: When the soldiers 
came to the house where we were taking the provisions, they asked us 
who we were, and where we were from. We told them we were 
Americans, from Jamaica; they said they would send us on board the 
Habanera schooner. We were a little more than two days on the way 
from the cape to the schooner. When on board, we were asked who 
we were, and where from ; we said from Jamaica. We were asked if 
we belonged to a ship there. I said I left the Duke of Wellington. I 
do not know what was the office of the person that asked the questions ; 
he appeared to be an officer, and spoke in pretty good English. My 
report was a false one. I was afraid that if I told the truth, perhaps 
they would not believe, or perhaps put me in prison, and I did not 
wish to be detained from making my statement to the authorities of my 
country. We were put in irons, but not otherwise ill-treated. I was 
on board the schooner about thirty-five days ; from thence conveved to 
Havana in a small merchant schooner, and put on board of a man-of- 
war in this harbor. We were not ill-treated. We were on board this 
man-of-war about eight days ; then to the prison we have been till now, 
on shore. We have been in the prison since the 2d of July. We have 
not been ill-treated by the officers of the prisons, but have been by the 
other prisoners. 

12th. To the twelfth interrogatory he saith : I have not asked, except 
of the consul of my country, now taking my deposition, for liberty, or 
my release or trial. 

13th. To the thirteenth interrogatory he saith : I have been exam- 
ined by the authorities of Havana once. I have not been informed by 
the authorities of the object of my imprisonment. I have made at the 
examination by the authorities here the same declarations that I have 
made now. 

14th. To the fourteenth interrogatory he saith : At Cape Coast one 



260 CASE OF THE BLACK WARRIOR, ETC 

of the men asked for his discharge, and it was refused him: he asked 
for his discharge on account of the victuals not being good. There 
were several means taken to deceive us before we got to the place 
where the slaves were taken in, Captain Townsend assuring us that 
we were to go back to the places we had been at to take palm oil. 
Further this deponent saith not, and subscribes his name. 

WILLIAM FREEBURN. 



September 20, 1853. 

Harvey C. Parks, being sworn, did declare and depose as follows : 

1. To the first interrogatory he saith: My name is Harvey C. 
Parks, aged twenty-three years ; a seaman ; born in Adams, Jefferson 
county, in the State of New York; residence in the town of Palmyra, 
New York, Wayne county. I was there about fourteen days before I 
embarked. Judson N. Pond, who lives in Marion Corners, a town 
adjoining Palmyra* 

2. To the second interrogatory he saith: I came to Cuba in the 
bark Jasper ; I joined her on the 12th December, in New York, in 
the capacity of sailor ; I lived in 94 Roosevelt street, the house kept 
by William Cloudsley. I think 1113- shipping-masters were Clark and 
Dean, who kept in South street, somewhere between Pine and Fulton 
streets, as I believe ; I subscribed my name to the articles. I did as- 
certain the conditions of the voyage ; I understood, for I was told, that 
the vessel was going to the coast of Africa on a trading vo}~age ; but 
they told me in the office that they could not tell which would be I he 
first port we Mere going to ; I understood we were to come back to the 
United States; no part of Cuba was mentioned; the voyage was not 
to exceed six months ; there were persons in the office, but none that 
I knew; the name of the captain that was in command was E. Town- 
send; I did not know the captain before I went on board ; my wages 
were fifteen dollars a month. 

3. To the third interrogatory he saith : I saw a female in a carriage, 
who asked a person that was with us, and afterwards proved to be 
our mate, if we were looking for the Jasper; he answered that he 
was, and she told him then to wait a minute and the captain would 
be there; we waited a few minutes, and the captain came round in a 
boat ; he told us, Men, put your things in the boat, and pull across the At- 
lantic dock, where the Jasper laid; I saw Captain Townsend speaking 
to the female, but did not hear any conversation ; I do not know the 
name of the female, but, from some conversation I overheard, I under- 
stood she was the captain's lady. 

4. To the fourth interrogatory he saith : I do not know Captain 
Wade. 

5. To the fifth interrogatory he saith: I know the Spaniard called 
Don Jose Mora; after the vessel was got out of the dock, a steamboat 
took hold of her; there was a man told the captain of the steamboat 
that he wanted to stop at the other dock a minute, which he did, and 
took in three or four trunks ; and three Spaniards came on board, one 
of whom was said Don Jose Mora, as it afterwards proved ; we were 
told that he was the supercargo of the vessel; nothing worthy of notice 



CASE OF THE BLACK WARRIOR, ETC 261 

occurred about him (we did not see him but once or twice the whole 
passage) till we got to Africa ; the last time I saw Jose Mora was on 
the island of Cuba, to which he came as captain of the Jasper. 

6. To the sixth interrogatory he saith : Captain Townsend did not 
command the Jasper to her arrival in Cuba. Nothing important oc- 
curred until our arrival in Africa. The first port we went into was 
V Elmina ; we put ashore some rum, a few boxes of sugar, and some 
cigars ; received some elephant's teeth. The supercargo, with another 
of the Spaniards, who was called his nephew, went ashore. After lying 
there three or four days, the supercargo's nephew came on board, and 
we dropped down to Cape Coast, which, is about four miles to the 
southward of Elmina ; we put ashore some rum there, and sugar and 
cigars, and received some more elephant's teeth, and some hundred 
and eightv bundles of tobacco done up in hides, and one hogshead of 
tobacco. * There the mate, John Brown, was discharged, and he went 
ashore. The captain made Robert Williams, who was sometimes 
called Radcliffe, act second mate ; the former second mate was made 
first mate. There the supercargo came on board. We got under way 
and went down the coast to Little Mina ; there we put ashore a good 
deal of rum and all the cigars remaining ; there we filled all our water- 
casks. We asked why they were filling so many casks. One of the 
Spaniards, who was called Pepe, answered us, and said that the water 
down the coast was brackish ; there were about ten casks filled ; we 
did not know at the time that there were any more casks of water on 
board, but subsequently, after we left the coast, we discovered that 
there was a very large quantity of water. We received on board at 
Little Mina a large quantity of ducks, hogs, and fowls. An English 
war steamer boarded us here ; I forget her name. We asked for some 
stuff to make light clothes ; Captain Townsend said that he would pro- 
cure us the stuff on the first opportunit}-. From thence we went to a 
little place called Ackie Wackie ; we understood that we were going 
to Laguna, but did not go there. At Ackie Wackie, a gentleman, who 
was either American or English, came on board, to whom was deliv- 
ered a quantity of tobacco ; this man received all the tobacco ; I heard 
Captain Townsend tell this man to inform some one that he wanted no 
receipt for the tobacco. The supercargo's nephew left us at Little 
Mina. A quantity of canoes, which we thought were coming down 
towards us, went down the coast. We laid there some two or three 
days, and put ashore also some casks of rum. We got under weigh 
soon after dinner ; dropped along down the coast, some twenty or 
twenty-five miles ; Captain Townsend told the second mate to overhaul 
twenty-five fathoms of chain round the windlass and weatherbit it ; 
we all inquired what that was for ; Williams said he did not know. At 
this time we were dropping down coast, all sail loose, only the fore 
topsail hoisted up, and the jib ; we all considered this very strange ma- 
noeuvring. We then saw a large number of canoes lying near the 
beach, and a large number of negroes on the beach. As we ap- 
proached, the canoes came towards us ; we thought they were after 
rum ; we let go the anchor shortly close to the beach, and let all sail 
hang ; the captain called the second mate, who went aft ; the boy, John 
Leo, was coming forward at the time ; the bov said, " Bv G — d, there is 



262 CASE OP THE BLACK WARRIOR, ETC. 

something up ;" we asked him why, and he said he heard the captain 
paying Mr. Hussy off. In a few minutes, we were all called aft into the 
cabin. By this time the canoes were alongside filled with negroes. We 
went into the cabin, and the captain (Townsend) said, " Men, I have 
sold my ship, and made a losing voyage of it ; I am going to pay you off with 
three months' extra pay ; you can go in the ship if you like; I cannot protect 
you here ashore." We asked him what he was going to do, and he said 
he was going right ashore. By this time the cabin was half full of ne- 
groes. We asked Captain Townsend if we could not go ashore. He 
said we could if we liked, but that he could not protect us, and that it 
was as much as he could do .to protect himself; he said also, " Be men, 
and go in the ship." We received our money and went on deck. The 
Spaniards and Williams, alias RadclifTe, were at work taking in the 
negroes. Jose Mora informed us that he was now captain of the ves- 
sel, and said also, " Men will you go with me ; if you will, I will give you 
fifty dollars per month each" We told him we did not know — that we 
wanted to think on it. We went forward and divided our money, as 
the whole had been paid together. All this time negroes were coming 
on board. I asked the other men what they thought about it, and told 
them I did not like to go. We went again to Townsend, who said, " Men, 
don't be children, go with the captain and lie will treat you well;" saying, also, 
''fifty dollars donH grow in eve?~y bush." The Spanish captain came up 
to us and asked us again if we were not going, and said that all would 
be right. We told him we could not tell yet ; we wanted to wait a 
minute, and went forward and sat down again. In a. few minutes 
he called us aft, and asked again if we were going, repeated his offer 
of fifty dollars a month, and promised that when we came out he would 
send us to the United States. Whilst he was talking I hailed a 
canoe, but the Spanish captain spoke something in Spanish, and the 
canoe did not come alongside. My intention was to go ashore in the 
canoe. We again went forward, and concluded that we would go to 
work ; we saw that Williams, Hussy, and Robertson, had gone to work ; 
we went to the gangway, and I asked the Spanish captain what his 
conditions were : he said he would give us fifty dollars a month ; that 
we should not be misused ; and after the negroes were landed we 
should all be sent to the States ; we then went to work. That same 
night we left the place with from three hundred to three hundred and 
fifty negroes on board. Nothing important occurred until we got to the 
coast ; here we landed the negroes on a small key on the south side of 
v 7 Cuba, in the morning. After they were landed, the carpenter and 
myself went ashore and asked the captain what was going to be done; 
he said, get the ship off (she was aground) and round the ke}^ and I 
will pay you off and send you away ; the captain was sick at the time; 
we went on board ; nothing was done that day till the evening tide ; 
the captain sent on board a pilot to take the vessel round the island ; 
we got her off that night, and the Spanish mate wanted the pilot to 
take her round that night, which he undertook to do, but by some mis- 
mangement she was got aground again ; there was nothing more done 
that night ; the next day we were employed in lightening her. The 
same evening about a dozen Spaniards came on board to help us get 
her off; we did not succeed in getting her off; a boat went ashore and 



CASE OF THE BLACK WARRIOR, ETC 



263 



came back, saying that the captain had ordered her to be burnt; the * 
mate told us to get our things into the boat and go ashore, which we 
did ; and as we were going down the coast, about eight or nine miles 
from the vessel, we saw the smoke and light rise from the spot where 
the ship lay ; the Spanish mate was with us in the boat, and said we 
were to stop there a few clays ; the place was a key, as we were told ; 
we stopped there ten days. 

7. To the seventh interrogatory he saitli : I did not demand my dis- 
charge, because I supposed that I was discharged; I demanded to go 
ashore, but could not. 

8. To the eighth interrogatory he saith j I received good treatment 
before getting to Africa, and very bad afterwards. 

9. To the ninth interrogatory he saith: After we were informed 
that the Jasper was sold, the American flag was not used, but the 
Spanish. 

10. To the tenth interrogatory he saith : I have already stated, in 
my answer to a preceding interrogatory. I do not know the name of 
the place ; we stayed there fifteen days ; I was well treated by the 
Spaniards ; the captain, at the expiration of ten days, came and paid us, 
and promised that we should be taken off in three or four ; five days 
after, finding the promise unfulfilled, myself, Atkins, and Freeburn 
took the ship's boat in the night, leaving the balance of the crew on 
the key ; we went into Cape Antonio for provisions, and were taken 
up by the authorities and conveyed on board the man-of-war schooner 
Habanera; the names of my shipmates were, William Hussey, of Nan- 
tucket ; John William Leo", of the western part of New York ; George 
Hunt, a colored man, of Maine ; John R,adclifFe or W T illiams, an Eng- 
lishman ; Robinson, a French Canadian ; Charles Hersey, of Nova 
Scotia; William Atkins, of New York; and William Freeburn, of 
Philadelphia. 

11. To the eleventh interrogatory he saith : As stated to the tenth, 
I was sent on board the Habanera ; I was asked where I came from, 
and where I was going ; it was asked in very gcjod English ; I replied 
that we were from Jamaica., and were going to Key West ; my report 
was a false one; I was induced to make a false report, fearing that if 
we told the truth they would not believe us ; I was on board thirt}- 
five days ; I was well treated ; from thence I was sent on board a 
man-of-war in Havana; I was there eight days; I was very well 
treated; from thence conveyed to the jail of Havana, where I have been 
since the 2d of July and have been well treated by the officers, but ill 
treated by the other prisoners. 

12. To the twelfth interrogatory he saith : I demanded on the Ha- 
banera to be sent to the American consul. 

13. To the thirteenth interrogatory he saith : I have been examined 
once; I have not been informed of the object of my imprisonment; 
my declarations to the Spanish authorities have been the same as I have 
made now. 

14. To the fourteenth interrogatory he saith : I do not think of any- 
thing more ; and further this deponent saith not, and subscribes his 
name. 

HARVEY C. PARKS. 



264 case of the black warrior, etc 

September 21, 1853. 
William Atkins being sworn, did depose and say as follows : 

1. To the first interrogatory he saith : My name is Williams Atkins ; 
23 years of age ; I am a seaman; I was born in the city of New York, 
in Roosevelt street ; I have resided tor the last eight years in Oak street, 
city of New York ; my landlord was Winhold ; Captain Skofield, of ship 
Joseph Badger, of Brunswick; Captain Sawyer, of Mystic, in Con- 
necticut. 

2. To the second interrogatory he saith : I came to Cuba in the 
bark Jasper ; I joined herein New York, on the 12th December last, as a 
seaman; I was living at Wkihold's, Oak street — 1 think No. 45; I am 
not sure who were the shipping-masters, but think it was Clark and 
Dean, who came and shipped me at Winhold's ; I signed the shipping 
articles ; was told we were going to Sierra Leone, and other ports on 
the coast of Africa, on a trading voyage, which we were informed 
would last about seven months ; the vessel was to come .back to New 
York ; no part of Cuba was named ; no one concerned in the Jasper 
was present ; the captain's name was Townsend — his first name I 
think was Edward; I was not acquainted with Capt. Townsend before 
I went on board ; m3 r wages were fifteen dollars per month. 

3. To the third interrogatory he saith : I saw a female in a carriage ; 
she asked us if we were after the Jasper ; we answered in the affirma- 
tive, and she told us to wait — that the captain was coming in a few 
minutes; I saw the captain speaking to her; I do not know her name. 

4. To the fourth interrogatory he saith : I do not know Capt. Wade. 

5. To the fifth interrogatory he saith : I do not know the person 
called Jose Mora. 

6. To the sixth interrogatory he saith : Captain Townsend did not 
command and control the Jasper to her arrival in Cuba. When we 
were getting the vessel oat of the dock, a boat came from the opposite 
side with a man, who proved to be a pilot; Captain Townsend ex- 
claimed, My game is up now. Some chests were brought on board, 
and three or four men came on board ; they were Spaniards. Nothing 
worthy of notice occurred till our arrival in Africa. Wc first went 
into Elmina; from thence to Cape Coast; our mate was discharged — 
his name was Brown; from thence we w T ent to another place that I 
heard called Little Mina; we took water there, and fowls, pigs, &c. ; 
an English man-of-war steamer visited us here ; the captain, as the 
second mate told us, said to the officers of the steamer that we were 
going to Laguna; from thence we went to another place, the name of 
which I do not know; from thence to another place without houses. 
While busily employed on board, the second mate, the first thing we 
knew, had been paid off"; then myself and others were called into the 
cabin. The captain said, / am going to pay you off with three months' 
extra pay ; I am going to leave the ship here, and VU have nothing more to 
do with you. He said that he was going ashore there — that he had 
made a losing voyage of it. I told him that I wanted to go ashore too. 
He said, you can't go ashore here — the negroes will kill you for what 
money you have got; and if they don't kill you, you won't get anything 
to eat, and will starve to death ; he said, also, that he could not protect 
us, as there were no consuls nearer than 500 miles ; he said, also, You 



CASE OF THE BLACK WARRIOR, ETC 265 

see what is up. I told him, why did you not tell us before ? He answer- 
ed that he had no knowledge till the day before — that he had sold his 
ship ; negroes were coming on board at the time, and before we were 
paid off there were about a dozen of them in the cabin. When we 
were on deck* one of the passengers, who had been called supercargo, 
had then assumed command, and told us that he would give us fifty 
dollars a month to continue in the ship. I told him I did not want his 
money ; but it seemed that we had no other alternative but to go in 
the ship. Captain Townsend advised us to go in the ship, saying, 
You had better put money in your pocket — it is nonsense to go ashore here ; the 
rest of the crew went forward and consulted together. We were afraid 
to go ashore from what the captain had represented, and what Ave our- 
selves could see. After we were paid, the captain (Townsend) came 
to me, (I was standing on the waist,) and said, " Well, Atkins, what do 
you think of it now ?" I answered, " I do not know ; you have done it so 
quick that ive are taken all aback" He then said, " let me alone. for that ; 
dial is the way I do business — quick is the word" Then we went to work 
— took in a little over three hundred negroes, I think. I did not see 
when Captain Townsend went off, but he did go. About three hours 
after we were paid off, we got under way. There were a few dis- 
turbances on the passage ; we were badly treated and kept separated 
as much as possible, and sometimes without sleep ; we sailed on the 
2d of March, and arrived on the coast of Cuba between the sixteenth 
and twentieth of April, on the south side ; were not anywhere near 
Sierra Leone ; we dropped anchor at two or three places on the coast 
of Cuba ; at one of the points a boat came ; the next day after arrival 
on this coast the vessel struck ; the negroes were landed then ; they 
were landed in the boats of the ship, and some two or three boats from 
the shore ; that night, after some work, the vessel floated ; a pilot came 
on board ; she grounded again ; we worked to get her off, without suc- 
cess ; we were told to put our things in a boat and go ashore — that they 
were going to set fire to the ship ; we put our things in a boat and were 
transported about 12 miles up the coast to the westward : we went 
ashore ; ten days after, the captain came and paid us off; he told us 
that in a few days a schooner would come there and take us off; a 
schooner did come, but took no notice of us, The Spanish mate, (Dio- 
nisio,) who was with us, then said that he would not stop any longer, 
and that we might do what we best could. That night we waited 
till all were asleep, and myself, Freeburn, and Parks took the ship's 
boat and proceeded to sea, intending to go to Key West and inform 
where the rest of the crew were, if" not picked up in the Gulf. Thir- 
ty-six hours after we put into Cape San Antonio, to procure water and 
provisions. There we were taken by the Spanish authorities, and sent 
on board the man-of-war schooner Habanera. 

7. To the seventh interrogatory he saith ; When 1 was paid my 
money I took it as a discharge, but did not avail myself of it, for 
reasons given in the preceding interrogatory. 

8. To the eighth interrogatoiy he saith : I was well treated before 
Townsend left, but very badly after. The names of the persons in 
charge appeared to be all assumed. The captain's name I never heard. 
The first mate was called Dionisio ; the second mate, Loper. I was 



266 CASE OF THE BLACK WARRIOR, ETC 

forced to work, but we were paid for our work on landing at the rate 
of fifty dollars a month. 

9. To ihe ninth interrogatory he saith : The American flag was not 
used ; the Spanish was \\>cd. 

10. To the tenth interrogatory he saith: I have answei'ed the greater 
part ol this interrogatory before. The names of the rest of the crew 
were Mr. Hussy, (second mate,) William Radcliffe, George Hunt, (a 
black man,) Robinson, John William Leo, (a boy,) Charles Hersey, 
and the two that are now in prison with me. Radcliffe was sick, and 
pretty nearly dead ; and Robinson, who was his friend, would not 
leave him. The cook, Hunt, agreed to come with us, but changed his 
mind : the rest were afraid. We left the place some fifteen days after 
the burning of the Jasper. 

11. To the eleventh interrogatory he saith : I was conveyed to the 
schooner Habanera. I was there thirty-five days. I was asked where 
I was from, and what countryman I was"? The officer that interro- 
gated spoke some English. 1 said we had left a vessel called the Duke 
of Wellington at Jamaica, which was a false report. I was afraid if 
I told the truth something worse might happen to me. The other two 
men were put in irons, but I was not, as I had sore feet. We were 
otherwise well treated. Then we were placed in a small schooner, that 
conve3 T ed us to Havana in thirteen days' passage, and we were placed 
on board the admiral's ship. h\ this ship we remained eight days, 
and were well treated ; from thence to the jail of Havana, where 
we had the opportunity of communicating with the American consul. 
I have been in the jail two months and nineteen days. We have suf- 
fered a great deal from being confined with criminals, who have ill 
treated us and stolen our property ; but the officers of the prison have 
treated us well. 

12. To the twelfth interrogatory he saith : I have never demanded 
my release or liberty, except once on board the schooner, and once of 
the American consul here. I am not informed of any charge against 
me. 

13. To the thirteenth interrogatory he saith : I have been examined 
by the authorities once ; have not been informed why 1 am in prison. 
My declarations were the same as I am now making. 

14. To the fourteenth interrogatory he saith : I believe I have 
stated everything. Further this deponent saith not, and subscribes his 
name. 

WILLIAM ATKINS. 



I, William H. Robertson, acting consul of the United States of 
America for the city of Havana, in the island of Cuba, do hereby cer- 
tify that what appears written on thirty pages preceding this, numbered 
from 10 to 39, both inclusive, are the answers given under oath by 
William Freeburn, Harvey C. Parks, and William Atkins, and signed 
by them in my presence, to the interrogatories propounded to them by 
me, and appearing on pages 1 to 6, both inclusive. 



CASE OF THE BLACK WARRIOR, ETC 267 

In testimony whereof, I hereunto set my hand, and affix the seal of 
the consulate of the United States of America at Havana 
[l. s.] aforesaid, this twenty-third day of September, A. D. one 
thousand eight hundred and fifty-three. 

WILLIAM H. ROBERTSON. 



Mr. Mann to Mr. Robertson. 

Department of State, 
Washington, September 30, 1853. 
Str : Referring to your dispatch No. 45, in which you make known 
to the department that it is now entirely out of your power to do any- 
thing more for the unfortunate American seamen now confined in 
prison at Havana, charged with having been engaged in the slave 
trade, 1 have now to inform you that a copy of the correspondence on 
the subject will be transmitted to the minister of the United States at 
Madrid, with an instruction to bring the subject to the attention of the 

Spanish government. 

******* 

I am, sir, &c, 

A. DUDLEY MANN, 

Acting Secretary. 
W. H. Robertson, Esq., 

In charge of the U. S. Consulate at Havana, Cuba. 



Mr. Robertson to Mr. Marcy. 

[Extract.] 

[No. 60.] Consulate of the United States, Havana, 

October 20, 1853. 
Sir : * * * * Information has just been brought to 
me that the three prisoners whose depositions have been sent to the 
department are about to be brought to trial, and that the fiscal (prose- 
cuting attorney) has asked the court to condemn them to imprisonment 
for four years. Their final hearing will take place in a few days, and 
notice was sent to them to appoint a lawyer for their defence. * * 
It seems that they will be triecl on the ground that they stated in their 
declaration, when first captured, that they had escaped from an English 
vessel, and therefore they deem the whole statement untrue ; but still 
take that part of their declarations admitting that they had been on 
board the Jasper, and engaged in the slave trade, for which they must 
be punished. The same court, I am informed, has liberated, within a 



268 CASE OF THE BLACK WARRIOR, ETC 

few days, all Spanish prisoners that have been imprisoned for the 
same cause, taken in the act. 

I have the honor to be, sir, with great respect, your obedient servant, 

W. H. ROBERTSON, 

Acting Consul. 
Hon. William L. Marcy, 

Secretary of State of the United States, Washington. 



Mr. Robertson to Mr. Marcy. 

[Extracts.] 

[No. 61.] Consulate of the United States, Havana, 

October 26, 1853. 

Sir : On the 20th instant (dispatch No. 60) I had the honor to inform 
you that the three American seamen in prison here were to be brought 
to trial in a few days. #*##.;# 
There is not one particle of evidence against the accused, but their 
own testimony. * * * * The prosecuting attorney rests his de- 
mand upon the plea, that they have not been able to 'prove that they were 
forced to remain on board the jasper after she ceased to be engaged in a 

lawful trade. 

* * * * * * # 

I am fearful that this affair will become more complicated, and 
more delay occasioned, by the fact that the six other men of the Jas- 
per, of whom no information had been had for some time, are now in 
the hands of the authorities of the island. This fact was communi- 
cated to me on the 22d instant by the general of marines. A copy of 

his communication, and of my reply thereto, are herewith enclosed. 
******* 

I have the honor to be, with great respect, sir, your obedient servant, 

W. H. ROBERTSON, 



Hon. W. L. Marcy, 

Secretary of State of the United States, Washington. 



Acting Consul. 



[Translation.! 



Consulate of the United States, Havana, 

October 22, 1853. 

Most Excellent Sir : I have just received the communication that 
your excellency has done me the honor to address to me, accompany- 
ing the report which, under date of 19th instant, was addressed to 
your excellency by the commander of the war steamer Guadalquiver 
upon the occurrence at Cayo Jutias, and informing me at the same 
time that the six men to whom the commander makes reference, and 
calling themselves North Americans, belonging to the crew of the ves- 



CASE OF THE BLACK WARRIOR, ETC. 269 

sel they called Jasper, have been placed by your excellency at the 
disposal of his excellency the Governor and Captain General of the 
x island, for the purpose that he may deem proper. 

I doubt not that his excellency the Governor and Captain General 
will, at the proper time, officially communicate to this consulate what 
may be ascertained relative to said individuals. Be pleased, however, 
to receive my thanks for the information your excellency has in ad- 
vance communicated, and to accept the assurances of respect and con- 
sideration with which 

I am your excellency's very obedient servant, 

W. H. ROBERTSON, 
The Commercial Agent in charge of the Consulate. 
His Excellency Sr. D. Jose Ma. de Bustillo, 

Commander General of Marine. 



Mr. Robertson to Mr. Marcxj. 
[Extract.] 

[No. 62.] Consulate of the United States, Havana, 

October 28, 1853. 

gi R . * * * * * * # 

I ascertained yesterday that the six men of the barque Jasper had 
arrived in the morning, and were on board the guard-ship. I immedi- 
ately called on the captain of the port and requested permission to see 
them. He immediately granted it, and very courteously and kindly 
placed his own barge at my disposal to convey me to the guard-ship. 
I saw the men ; their story is equal in all respects to that given by the 
other three at their examination before me. I suppose the Captain 
General will write to this consulate soon on this subject. 

I expected Judge Clayton would arrive to-day in the Black Warrior, 
but he has not come. He may be here to-morrow in the Crescent City 
steamer from New Orleans. 

Very respectfully, your obedient servant, 

WM. H. ROBERTSON. 

Hon. W. L. Marcy, 

Secretary of State, Sfc. 



Mr. Cowjjerthwaite to Mr. Marcy. 

Philadelphia, Nove?nbcr 3, 1853. 
Sir : Since my respects of the 27th ultimo, the parents of the unfor- 
tunate young American, William Freeburn, are plunged into the deepest 
distress on the receipt of the intelligence, brought by the last mail 
steamer from Havana, that their unhappy son and his two companions 
have been condemned by the Spanish authorities of Cuba and sentenced 
to an imprisonment of four years. At their earnest solicitation I again 
address you, sir, to know whether official information of this kind had 



270 CASE OF THE BLACK WARRIOR, ETC 

reached Washington, and whether the needful steps for the reief of 
these young men had been taken on their behalf. 

On the 25th of September the mother of young Freeburn addressed 
a letter to William H. Robertson, the acting consul at Havana, en- 
treating his good offices on behalf of her son. His reply, under date 
of the 6'th of October, is now before me, in which he says, " I hasten to 
relieve a mother's feelings, as the steamer goes in the morning, to say, 
I have just sent the deposition of your son and his two companions to 
the government at Washington, which deposition purges them of all 
guilt." 

I hope this document has safely reached Washington, and that meas- 
ures have been taken to vindicate the rights of these unfortunate young 
Americans. 

The consul seems to have done all in his power to alleviate their 
miseries, and expresses the strongest conviction of their entire inno- 
cency, and the confident expectation of their speedy release. 

If the deposition forwarded by consul Robertson has reached Wash- 
ington, it would be a consolation to the parents to be furnished with a 
copy of it, as it would vindicate the integrity of their son. May I ask 
to have a copy sent to me, and for a reply to this communication as 
early as the pressure of your important duties will permit. 

I have the honor to be, with great respect, your obedient servant, 

J. COWPERTHWAITE. 

Hon. W. L. Marcy, 

Secretary of State, Washington. 



Mr. Graff to Mr. Marcy. 

Philadelphia, November 5, 1853. 

Dear Sir : I take the liberty of addressing you with the object of 
giving some testimony to the good character of one of the unfortunate 
sailors who shipped under mistaken impressions in the " barque Jas- 
per," and are now imprisoned in Havana : hoping that what knowledge 
I may communicate of such good character may be useful in establish- 
ing an impression in your mind as to his innocence of any voluntary 
connexion with the nefarious trade, as is now alleged against him. 

The young man referred to, William Freeburn, I have had in my 
employ several times, and have had considerable knowledge of him for 
a period of at least eight years, and known him to have been a remark- 
ably upright, amiable, truthful, and perfectly sober young man ; and 
from the numerous opportunities I have had of judging of his disposi- 
tion, I feel perfectly confident of his entire innocence of the charges 
now brought against him ; and that his assertions, that he was induced 
to ship upon the bark on account of false statements as to her busi- 
ness and destination, are all entirely true. He is poor, and, of course, 
has but few to interest themselves for him, even in his own city. In 
his letters from Havana he speaks in the highest terms of the United 
States consul there, whom he thinks has done all in his power for him 
and his unfortunate companions, of which of course, you are already 
aware. 



CASE OF THE BLACK WARRIOR, ETC- 271 

The government, through you, will, I know, take all the proper steps 
in this matter, and I merely write these few lines with the hope that 
what testimony I can give as to his character, and the l-eliance I have 
in the statements made by him, may assist you in forming some conclu- 
sion as to the innocence of the charge upon which he is imprisoned. 
Hoping that you will receive my anxiety lor the } T oung man (in whom 
I am much interested) as sufficient excuse for the liberty I take in in- 
truding these few lines upon you, 

I remain, very respectfully, your obedient servant, 

FRED. GRAFF, 
Civil Engineer, Sup. Fairmaunt Waterworks. 
Hon. Wm. L. Marcy, 

Secretary of State. 

Further testimony can be obtained if you should consider it neces- 
sary or desirable. 



Mr. Robertson to Mr. Marcy. 

[No. 64.] Consulate of the United States, Havana, 

November 7, 1853. 
Sir : I had the honor to receive on the 3d instant a dispatch from 
the State Department of the 30th September last, signed by Mr. Dud- 
ley Mann, as acting secretary. I feel gratified to learn that the de- 
partment takes an interest in the fate of the three seamen (our unfortu- 
nate countrymen) now lying in prison here. 

# ' # # * * 

# 

The defence of the three American seamen has been presented to 
court. I understand that it is an able document, and regret that I can- 
not forward by this opportunity a translated copy of it. The next 
steamer will convey it. 

I have the honor to be, sir, with great respect, your obedient servant, 

WM. H. ROBERTSON, 



Hon. Wm. L. Marcy, 

Secretary of State. 



Acting Consul. 



Mr. Marcy to Mr. Clayton, United States Consul, Havana. 

Department of State, 

Washington, November 8, 1853. 

Sir: Your special attention is directed, immediately on } r our arrival 
at your post, to the condition of the American sailors now imprisoned 
in Havana, and awaiting their trial, charged with a violation of the 
laws of Spain in regard to the slave trade. The facts, so far as they 
are known to the department, from the dispatches of Mr. Robertson, 
(who has discharged the duties of United States consul at Havana 



272 CASE OF THE BLACK WARRIOR, ETC 

since the departure of Judge Sharkey in June last,) and from gentle- 
men in the United States, are chiefly these : The barque '- Jasper" 
was seized in New York on the 19th of October, 1852, charged with 
sailing under a false register, and belonging, as was supposed, to a 
Spaniard named * * * * * , though her papers bore the name 
of * * * * * * . The barque having been detained in custody 
for some time, was at length bonded in the sum often thousand dollars, 
and on or about the 12th of December sailed secretly from the port 
without any clearance or papers, under the command of Captain 
Townsend, for the African coast. After touching at two or three places 
on the cape coast, and landing nearly the whole carge, Captain Town- 
send sailed for another point, where, immediately on his arrival, he in- 
formed his crew that he had sold -his vessel. She was at once filled 
with a cargo of three hundred negroes, a part of whom were put on 
board before Captain Townsend left the ship. Having paid his crew 
three months' extra wages, and saying he could no longer protect them, 
he advised them to go back in the vessel as passengers, as they would 
either be killed by the natives or starve to death if they went on shore. 
Having no other alternative, they remained on board the vessel, doing 
duty as sailors, and subjected to much hard treatment. The barque 
then sailed under the command of Spanish officers, and with a Spanish 
flag, for Cuba, where, having- landed her cargo, the vessel was run 
aground and burnt. The Americans who composed the original crew 
of the vessel, having been told by the Spanish mate that he could do 
nothing for them, took to the long-boat, and tried to make their way to 
some place where they could obtain assistance. On the 5th of May 
the three sailors above referred to, and believed to be citizens of the 
United States, while seeking water and provisions near Cape Antonio, 
were arrested by some Spanish soldiers and sent to Havana, where 
they are now awaiting their trial, which the department is informed in 
Mr. Robertson's No. 61. under date of October 26th, will shortly take 
place. 

The department regrets that the representations which Mr. Robert- 
son has repeatedly been instructed to make to the Captain General 
have been disregarded, viz : that these unfortunate sailors were, most 
likely, ignorant of the intended object of the voyage when they shipped 
on board the " Jasper" at New York, and are at least entitled to the 
benefit of the doubt ; that the}* had, in fact, no other way left, when 
on the African coast, but to return to America in the vessel; and the}* 
were thus unwillingly compelled, contrary to their inclinations, to par- 
ticipate; in the odium, the danger, and the criminal offence, (though 
without criminal intent, and innocent in point of fact ;) that the ends of 
justice would be best subserved by yielding to the urgent request of 
the United States district attorney at New York, a copy of whose letter 
on the subject is on the files of the consulate, to permit them to be sent, 
under the care of a United States officer, to that place, for the purpose 
of using their evidence to convict parties in that city supposed to have 
been concerned in fitting out the " Jasper" and engaging in the slave 
trade. 

It was suggested also to Mr. Robertson, in the case of refusal, to re- 
quest that they might be allowed to be witnesses in suits which might 



CASE OF THE BLACK WARRIOR, ETC 273 

properly be brought against persons in Havana, whose names are well 
known, and who were the chief instigators of the offence with which 
these unfortunate men now stand charged. 

The department has been given to understand that the Spaniards who 
were arrested and imprisoned for the same offence have all recently- 
been set at liberty, without the form of a trial, by the very court which 
has been asked by the fiscal to condemn to imprisonment for four years 
the American sailors. A proceeding so partial and so contrary to jus- 
tice, if true, needs but to be stated to receive universal condemnation ; 
while, at the same time, it must tend still further to excite in this coun- 
try, and among a portion of the Cuban population, a spirit of increased 
hostility to the existing institutions of the island. If a part of those 
alleged to be guilty of the same criminal offence may be discharged 
without trial by the Spanish court, there would seem to be no reason 
why the same indulgence should not be extended towards those who, 
by their own account, which yet remains uncontradicted, were entrapped 
into the apparent commission of a high crime. Even if the court should 
be unwilling to assume this responsibility, it is understood that the Cap- 
tain General is invested with ample power for the purpose. 

The Spanish authorities seem now determined to press the case of 
these seamen to a trial, and you are instructed to take care that all the 
provisions of the seventh article of the treaty between the United States 
and Spain, of 1795, are complied with. That article declares that "in 
all cases of seizure, detention, or arrest for debts contracted or offences 
committed by any citizen or subject of the one party within the juris- 
diction of the other, the same shall be made and prosecuted by order 
and authority of law only, and according to the regular course of pro- 
ceedings usual in such cases. The citizens and subjects of both parties 
shall be allowed to employ such advocates, solicitors, notaries, agents, 
and factors as they may judge proper, in all their affairs and in all 
their trials at law in which they may be concerned before the tribunals 
of the other party ; and such agents shall have free access to be present 
at the proceedings in such cases, and at the taking of all examinations 
and evidence which may be exhibited in the said trials." 

It is deemed of the highest importance that the prisoners shall be 
allowed the advice and assistance of counsel in all the examinations of 
witnesses in the case, and in every step of the proceedings. 

If the seamen desire it you will be present as the natural defender 
of their rights, and, by virtue of the treaty stipulations, as their counsel 
and advocate. Should there be any disregard of these stipulations you 
will at once enter your protest against it and report the fact to this 
department. 

In view of the circumstances of the case you are authorized to em- 
ploy other counsel, and to charge the expense of the same in your ac- 
count — it being understood that this is not to be considered a precedent 
for the employment of counsel, except under special authority from the 
department. 

I am, sir, &c, 

W. L. MARCY. 

Alexander M. Clayton, Esq., 

United Slates Consul, Havana. 
18 



274 CASE OF THE BLACK WARRIOR, ETC. 

Mr. Mara/ to Mr. Coteperthwaite. 

Department of State, 
Washington, November 10, 1853. 

Sir : I have to acknowledge the receipt of your communication in 
respect to William Freeburn, one of three American seamen now im- 
prisoned in Havana, and awaiting his trial, charged with having been 
engaged in the slave trade. 

In reply I have to inform you that the department has taken a deep 
interest in the fate of these unfortunate men from the moment it received 
information of their arrest and imprisonment. Mr. Robertson has been 
acting throughout under the instructions of this department ; and Mr. 
Clayton, the newly-appointed consul at Havana, has been informed of 
all the circumstances of the case, and additional instructions sent to 
him since the receipt of your letter. 

The deposition of William Freeborn, to which 3-011 refer, has been 
transmitted to Mr. O'Conor, the United States district attorney in New 
York, for the purpose of being used in an important trial in that city. 

I transmit herewith an extract from Mr. Robertson's dispatch, dated 
October 26th, which is the latest information in respect to these seamen 
which has been received at this department. 
I am sir, &c, 



J. Cowperthwaite, Esq., 

Philadelphia, Pa. 



W. L. MARCY. 



Mr. Robertson to Mr. Marcij. 

fNo. 65.] Consulate of the United States, Havana, 

November 14, 1853. 

Sir : In my dispatch, No. 61, dated 26th of October, I had the honor 
to inform } r ou that the six men, shipmates of the three belonging to the 
bark Jasper, and that have been so long in prison, had been captured, 
and that the general of marines had informed me of their capture, and 
of his having placed them at the Captain General's disposal. With 
that dispatch 1 forwarded to you a copy of the General's letter and my 
reply thereto. 

On the evening of the 7th I received a communication from the Cap- 
tain General, dated the 5th, on the subject. I send you a copy (trans- 
lated) of it, and my reply. You will see my object in the reply was to 
save the six men from a long imprisonment, if possible, and at the same 
time to prevent more delay in the case of the other three. I am sorry 
to say that I was unsuccessful, for the Captain General on the 9th in- 
forms me, officially, that the six men belonged to the Jasper, and that 
he had put them at the disposal of the royal audienci'% Copies of his 
excellency's commumcation and of my reply are also herewith enclosed, 
together with a translation of the defence sent to court by the lawyer 



CASE OF THE BLACK WARRIOR, ETC. 275 

of Parks, Atkins and Freeburn. Sentence has not yet been decreed 

by the court. 

****** 

I have the honor to be, sir, with great respect, your obedient servant, 

WILLIAM H. ROBERTSON, 



Hon. Wm. L. Marcy, 

Secretary of State, 8fc. 



Acting Consul. 



[Translation.] 

EVER FAITHFUL ISLAND OF CUBA.— GOVERNMENT AND CAPTAINCY GENERAL, POLITICAL SECRE- 
TARY'S OFFICE, SECTION SEVENTH. 

There are detained on board the guard-ship Villavicencio six indi- 
viduals who say that they are shipwrecked men, and that they belonged 
to the American bark Jasper, lost on the Colorado reefs. 

Therefore, I hope that your lorship will be pleased to inform me as 
early as possible all that you may know in regard to said bark's place 
of sailing and her loss, and whether the said individuals detained be- 
longed to her, so as to resolve what may be proper. 

God preserve your lordship many years. Havana, Nov. 5, 1853. 

VALENTIN CANEDO. 

To the Agent 

in charge of the Consulate of the United States. 



Consulate of the United States, Havana, 

November 8, 1853. 

Most Excellent Sir : I had the honor to receive, on the evening of 
yesterdav, your excellency's official communication of the 5th instant, 
wherein I am informed of the detention on board the ponton Villavi- 
cencio of six individuals who belonged to an American vessel and were 
wrecked on the Colorado reefs. I presume that these individuals are 
the same about whom his excellency the general of marines courte- 
ously wrote to me on the 22d of October last, as having been sent to 
his excellency by the commanding officer of her Catholic Majesty's 
steamer Guadalquiver from Cayo Justia's, and as having been placed 
by his excellancy at your excellency's disposal. 

Your excellency desires me to inform 3-ou, as soon as possible, all I 
may know in regard to these men, and the circumstances of their ship- 
wreck. I have no further reliable information on the subject but that, 
which has been communicated to me by your excellency, and by his 
excellency the general of marines. I have therefore no good reason to 
suppose that they are anything but what they state themselves to be. 

It is my duty, in obedience to one of the standing instructions of my 
government, to aid and succor all distressed American seamen that may 
be found within the jurisdiction of this consulate, and if no employment 



276 CASE OF THE BLACK WARRIOR, ETC. 

may be obtained for them, to send them to the United States at the ex- 
pense of the government. It is also my duty, of course, to ascertain by 
their papers that they are Americans ; but in many cases of shipwrecks, 
seamen lose their papers, and the consul must in such cases abide by 
their word and general appearance. It is very probable that the sea- 
men referred to may be in the latter condition, and I am ready to 
receive them and take charge of them, if your excellency will be so 
good as to order that they be placed at my disposal. 

I have the honor to be, with great respect, your excellency's obedi 
ent servant, 

WILLIAM H. ROBERTSON, 

Com. Agent in charge of Consulate. 
His Excellency Senor Don Valentin CaNedo, 

Governor and Captain General of the Island of Cuba. 



[Translation.] 

[seal.] 

I have received }^our official letter of yesterday, in answer to mine of 
the 5th instant, about the six seamen who are on board the ponton Vil- 
lavicencio, and were found at Cayo Justias, and who were sent by the 
commanding officer of her Majesty's steamer Guadalquiver ; which sea- 
men having turned out to be the same whom you referred to in your 
communication of 15th July last, stating that they were on the Cayo 
Cortes, and who, from information obtained, it was supposed had em- 
barked on a molasses vessel bound to this port, I have put them, under 
this date, at the disposal of the real audiencia pretorial, (superior court,) 
as they belong to the crew of the corvette or bark "Jasper," that landed 
the cargo of bozal negroes she brought from Africa, at the place called 
Baylen, or Cortes Cove, where she was burnt after the landing, to the 
end that the said superior court may determine what is proper on the 
subject, as said court is still investigating and proceeding in the cause 
instituted in consequenee of the act mentioned. Which I say to you 
for your information. 
• God preserve you many years. Havana, November 9, 1853. 

VALENTIN CANEDO. 
To the Senor Commercial Agent 

in charge of the Consulate of the United States. 



Consulate of the United States, Havana, 

November 11, 1853. 
Most Excellent Sir : I had the honor to receive, last evening, your 
excellency's communication of the 9th instant, in regard to the six sail- 
ors on board the ponton Villavicencio. I am sorry to learn that these 
men belonged to the Jasper, that landed negroes at Baylen ; though I 
feel gratified that their personal safety is secured. They have no doubt 
undergone great anxiety and trouble, and their being now subjected to 



CASE OF THE BLACK WARRIOR, ETC 277 

the delays consequent to a judicial investigation will make them feel 
very uneasy, even in the case of their being eventually acquitted, as I 
hope they will be, for I am well convinced that they, as well as the 
other three who have been so long in prison, and at present undergoing 
trial, were deceived by the parties interested in the vessel, and that they 
were innocent of all intention to infringe the laws of their country or of 
Spain. 

I trust that the proceedings in regard to these six men will not cause 
more delay to prevent the case of the other three from being brought 
to an immediate termination. I will respectfully solicit of your excel- 
lency to use your powerful influence to bring their trials to a prompt 
conclusion. 

I have the honor to be, very respectfully, your excellency's obedient 
servant, 

WM. H. ROBERTSON, 
Commercial Agent in charge of the Consulate. 

His Excellency Senor Don Valentin Canedo, 

Governor and Captain General of the Island of Cuba. 



Most Powerful Lord : Don Jose Gregorio Ibarrola, an attorney 
of this royal superior court, and guardian (curador) appointed by the 
court, of the seamen, William Atkins', William Freeburn, and Harvey 
C. Parks, in the proceedings carried on before this superior court, 
about the landing of two hundred and eighty bozal negroes at a place 
called Baylen, in the manner most conformable to law, says : that the 
parties whom I defend have been informed of the charge made by the 
fiscal (prosecuting attorney) asking that the penalty of four years' im- 
prisonment be decreed against them, unless they prove, they having 
confessed that they formed a part of the crew of the Jasper, that when 
they embarked at New York, they did so in the understanding that 
that vessel was going to Africa after goods of lawful trade ; not on 
account of the necessity in which every judicial defender is, of exhaust- 
ing every means for the saving of his client, but because, sincerely 
speaking, the opinion of the learned and zealous representative of pub- 
lic vengeance (vindicta publica) appears exaggerated, that I will try to 
demonstrate that the unfortunate minors, victims and not criminals, in 
the affair of the Jasper, ought to be absolved from all culpability and 
penalty, declaring, at the same time, their right to be in force, that they 
may exercise it against whom it may concern. The attorney for the 
prosecution, to whose strenuous efforts is due the discovery of such 
facts as the finding of the hull of the vessel that was burnt, and of 
another fact not mentioned in the process, has shown, in his severe style, 
the profound aversion with which he looks upon the filthy traffic in slaves, 
seconding the noble conduct of the president of this court, Don Valentin 
Canedo, and has acknowledged, with the immense pain with which hon- 
est men in Cuba must confess it, that there are many parties interested 
in the traffic that make the investigation of the facts impossible. Well, 
if opinion is to be considered in these cases, allow me also to allege 
the opinion of the country of the accused. Were they natives of the 
southern States, there might exist a presumption against them ; but 



278 CASE OF THE BLACK WARRIOR, ETC. 

t hey are all, most powerful lord, natives of the northern States, where 
a hatred to the institution of slavery grows in the midst of attempts of 
future and serious disturbances to the American Union. The first rea- 
son appearing to establish their innocence, is their birth. But it will be 
said that they have confessed the crime, or the infringement of the 
Spanish law. The assertion is not entirely exact. The confession that 
law requires is not that of a fact, but that of an intention. The fact 
always exists ; it is one and invariable ; it is sign of matter, but not of 
the spirit or of the will. The accused might stand convicted, but not 
confessed (confesos.) In the proceedings there is not one single datum 
besides the declarations of the prisoners, and not one of their letters 
says that they went to Africa to bring slaves. Even if an explicit con- 
fession existed, the true meaning of the law of partida would not justify 
the punishment of the supposed criminals, because the mere confession 
is not a sufficient foundation, according to the Spanish law. As long as 
the voluntary infringement of the penal law is not proved, there is no 
crime ; for the same reason that the punishment is possible, just, and 
necessary, is the proof possible, necessary, and just. Presumption is 
as moral for the judge, as inefficient for punishment. The confession 
upon which the report I am answering is based, does not exist in its 
judicial form, as the only thing the accused have said is, that they be- 
longed to the crew of a vessel that sailed from New York, bound to 
the coast of Africa ; there exists nothing more than their declarations 
upon the subject. In this manner is their existence in the said vessel 
explained : 

The accused were captured or arrested at the Cape San Antonio by 
two matriculated of the Spanish mercantile marine, and when they 
were first examined they had no discrepancy in their statements as to 
the circumstances that brought them to this country. They stated that 
they were arrested on a morning of May last, when they had disem- 
barked at Cape San Antonio to provide themselves with water and 
provisions ; that they had arrived at that place from some sixty miles to 
the eastward of the southern coast, and that the boat which conveyed 
them belonged to the American ^bark Jasper, of which they had 
formed part of the crew, and which had come to these waters from the 
coast of Africa with a cargo of' bozal negroes, numbering about three 
hundred, that had been landed on the said southern coast, where the 
vessel was burnt without their knowing by whose order ; they said that 
the negroes had been landed in the boats of the bark and in three other 
boats that came from the shore ; they are ignorant who were the parties 
interested in the cargo. The vessel did not sail from any point of the 
island of Cuba, but from New York, to make a voyage to Sierra 
Leone, for the purpose of bringing goods of lawful trade, and no insinu- 
ation was made to them about negroes, neither did they know of such' 
negroes until they saw them in the vessel. The narrative that has just 
been read has all verisimilitude imaginable. Those who fitted out or 
purchased the vessel were m no necessity of revealing the object of the 
voyage to the sailors, who were instruments and not agents in the busi- 
ness. It suited the interest of the purchasers that the American flag 
should protect their crime, because, as the vessel could not be visited, she 
went safely to the coast of Africa itself;- but the American officers, who 



CASE OF THE BLACK WARRIOR, ETC 



279 



were engaged to that place to deliver the vessel to the purchasers, 
would not continue their services any further after they learned the ob- 
ject of the voyage. The captain remained on shore at thejjace they 
touched at off the coast, and the mate had previously lei; and the 
command was taken as captain, and the capacity of first and second 
mates, by the Spaniards mentioned in the declarations. The unfortu- 
nate seamen, deceived and taken by surprise, had no other resource 
but to yield to the law of necessity ; neither could they appeal to force, 
had rebellion occurred to their minds as a resource, as it may be seen 
in the declarations that the Spaniards and Portuguese exceeded the 
sailors in authority and numbers. It was necessary to resign them- 
selves to the imperious necessity that oppressed them, till the moment 
of their arrival and separation in the boat. Even then they were 
warned to be silent, to continue oppressing their minds, and threatening 
them with serious troubles if they made known what had taken place, 
which they are now verifying in a prison to their misfortune. 

In regard to the truthfulness of the declarations, other data appear in 
the proceedings that destroy the suspicion that they are mere excuses. 
The consul general of England, on participating to the government the 
imprisonment of the three sailors, about whom governmental communi- 
cations had already taken place, states the facts as repeated by the 
accused, and these coincide with those opinions — not only the official 
communication of the consul or commercial agent of the United States, 
but also that of the commanding officer of the United States sloop-of-war 
Albany, in which he affirms by a perfect conviction that the American citi- 
zens imprisoned have not intended to infringe the laws of Spain nor of the 
United States, and that therefore they were deceived by the parties inter- 
ested in the expedition ; that it was necessary that these latter should 
be punished for their nefarious and iniquitous conduct ; that, consider- 
ing the sailors innocent, he claimed them, and requested of the Spanish 
government to have arrested the six individuals remaining, who, he 
understood, were on Salt Key. These statements of three foreign func- 
tionaries in favor of the intention of my clients give credit to their asser- 
tion. Were not the presumption of innocence sufficient, unless a criminal 
intention shall be proved ? and were it for the sameness of the declara- 
tions, which appear as if they had been copied from each other ? 

In the act of taking their declarations, the accused were reproved on 
their defending themselves from capability, without any other foundation 
than the fact of their not having presented themselves to the authorities 
when they found themselves free from coaction, to prosecute the authors 
of the evils they had undergone. The censure will become of no force 
when it is observed — 1st. That the}^ were ignorant who were the parties^ 
interested in the vessel. 2d. That they were made to believe that if 
they confessed what had taken place they would fare badly. 3d. That 
in their country they had the right to make claims against those who 
had deceived them there, by means more expeditious and in accord- 
ance with their habits, customs, and laws. 

Had they believed themselves to be guilty, they would not have landed 
in a country where everything was strange to them, and where the first 
suspicion they were going to create was by their use of the English 
language, which was the cause of their being observed and detained, 



280 CASE OF THE BLACK WARRIOR, ETC. 

as one of the captors has said. They believed themselves to be at the 
worst iruthe case of deserted seamen, who, by an article of the treaty 
in force, ^e to be mutually delivered up ; but they forgot that, there not 
existing Prole d'equipage, (crew list,) the delivery could not be effected, 
and now they are undergoing the rigors of a jail. 

Your highness is well aware that in criminal cases it is dangerous to 
give estimation to presumptions not corroborated by full proofs. His- 
tory presents us examples that are now weighing upon the public con- 
science of nations like grave-stones. It is vain that memories have 
been honored and posterity satisfied, if the evil has been unavoidable. 
This _ case itself presents serious suspicions against a Spanish high 
functionary and all his subordinates at New Filipinas. It has been 
proved that the cargo was landed in that territory, and that the vessel 
was burnt in a bay ; and, what is still more scandalous, an accusation 
by the English consul about the delivery of money to pay for those in- 
fringements has been confirmed; and still the facts are explained, and 
your highness has discontinued all proceedings in regard to those indi- 
viduals. The most dishonorable part of the affair — that of the partici- 
pation of a price for consenting to the landing — I have heard the friends 
of Ayllon explain in the most satisfactory manner. 

The lieutenant governor had for enemies those whom he prevented 
from committing misdemeanors, and these enemies either calumniated 
him, or supposed that the money that had been remitted without mys- 
tery, there being no motive for concealment from the public eye, was 
the price of the crime. 

The facts have not been blotted out ; the suspicions could not be 
completely removed ; and the doctrines of the fiscal (attorney for the 
prosecution) I adopt as positive. As long as there is no proof, pre- 
sumptions may exist in vain. My clients have not confessed a crime ; 
they have made known one fact, which is made apparent only in their 
declarations. Their situation cannot be made more painful than it has 
been till now. Were it fully established that the three sailors belonged 
of their own will to the crew of the bark Jasper, the penalty de- 
manded by the fiscal against them would still be excessive. The law 
makes no mention of the case in point. It was very difficult to be fore- 
seen, as it was very difficult to conceive of the frank statement made 
by the three foreigners who are the subjects of the present proceedings. 

The law has considered that the capture may be made by cruisers 
of a vessel with bozal negroes on board, or already without them ; for 
the two cases it has indicated different penalties to the captain and 
others of the crew. 

What penalty does the law impose against a seaman who is captured 
taking provisions to return to his country, and by no means on board 
of a vessel ? 

What penalty does the law indicate against him who acknowledges 
that he was an involuntary seaman of a vessel that has disappeared? 

If the law, in the case of the vessel being captured without negroes, 
has diminished the penalty one half, and even more, how is it that four 
years of imprisonment are demanded, when the law imposes no penalty 
in the strange case now in question ? If any penalty is to be imposed, 
it should be that of the fourth article of the law of 1845, or, what is the 



CASE OF THE BLACK WARRIOR, ETC 281 

same, that of one year's imprisonment, as it is the minimum between 
the various cases. It is not, however, applicable to the present ques- 
tion, because no proof exists, no vessel has been captured, no negroes 
have been found, nor have the local authorities been punished for the 
infringement or negligence. Nothing exists but the statements of the 
accused, which have already been analyzed. In short, there exists only 
one fact demonstrated, which is, that three •American seamen have re- 
vealed and given the means to investigate that they have been by vio- 
lence brought in a slaver vessel that disembarked her cargo in Cuba ; 
that in virtue of the eighth article of the treaty between Spain and the 
United States of 27th October, 1795, they believed themselves author- 
ized on account of the greater penalty suffered, urgent necessity, to come 
ashore for provisions ; that, resting on the personal provisions of the in- 
ternational law of their country, they believe themselves to have the 
right of prosecuting their deceivers, and did not presume that they 
would be subjected to suffering for their forcible permanency on board 
of the slave ship ; that by virtue of their condition as sailors, they sup- 
posed, in conformity to the thirteenth article of the treaty of 22d Feb 
ruary, 1819, that they would be delivered up to their consul, as they 
had been looked upon as deserters, about which they subsequently 
changed their purpose, but not their condition. 

On making these suggestions, it is my mind to demonstrate that, on 
the part of my clients, no law of the country has been infringed ; that 
they were not voluntary slavers, nor have they exercised rights which 
they had not when captured. It is true, that by reporting themselves 
deserters they did not tell the truth, but they have not failed against 
truth in any solemn act. Therefore, I petition of your highness to be 
pleased to decree and ordain in conformity to what I have solicited at 
the commencement, and dispose, in consequence, that the three prisoners 
be delivered to the American consul, as has been asked by the com- 
mander of the Albany, that they may be transmitted to New York, 
there to make the investigations already indicated, so that the accused 
may be allowed the damages they have suffered. 



Mr. Marcy to Mr. O 1 Conor. 

Department of State, 

Washington, November 16, 1853. 

Sir: Information has been received at this department, that the 
Spanish captain of the barque "Jasper" is now staying with his wife, 
under the assumed name of .**.** * *, either at the New York or St. 
Nicholas Hotel, and that he is engaged in fitting out another expedition 
to the coast of Africa. This intelligence is deemed of sufficient im- 
portance to be communicated to you without delay. 
I am, sir, &c, 

W. L. MARCY. 
Charles O'Conor, Esq., 

U. S. District Attorney, New York. 



282 CASE OF THE BLACK WARRIOR, ETC. 

Mr. Clayton, United States Consul, to Mr. Marcy. 

[Extract.] 

Consulate of the United States, Havana, 

December, 5, 1853. 

Dear Sir * •* * * * * 

In your dispatch of the 9th ultimo, relative to the American seamen 
imprisoned here, you refer to the 7th article of the treaty of 1795. I 
learn from various sources, among others from a letter of the late consul 
Sharkey to your department, of date the 15th of January, 1853, No. 
23, that the authorities of this island do not regard that treaty as having 
any force or effect here. Whether this view be correct or not, is of 
little practical import so long as they adhere to it. It furnishes reason 
for an effort to form a new treaty, or to get this recognized, expressly, 

as extending to all the Spanish islands and dependencies. 

***## #*# 

I have the honor to be, &c, 

ALEX. M. CLAYTON, 
U. S. Consul, Havana. 
Hon. W. L. Marcy, 

Secretary of State. 



Mr. Robertson to Mr. Marcy. 

[Extract.] 

Consulate of the United States, Havana, 

December 21, 1853. 

Sir : 1 received last evening notes from several of the prisoners, beg- 
ging me to come and see them ; that their condition was becoming 
every day more desperate. I went, and took them some money and 
other articles necessary for their comfort. The three prisoners that 
were, first captured had some money of their own, which they placed 
in my hands, and I have been giving it to them in small sums since. 
The other six had not a cent when they were, brought ;. they had been 
robbed, and spent every dollar they had. I have advanced to the 
second mate, for the benefit of the six, $17, and have directed the sec- 
retary to charge it to me, until I was authorized by the department to 
charge it to the government, which I hope may be allowed, in con- 
sideration of the circumstances. ********** 

The fiscal (prosecuting officer) has asked that the six be condemned 
to four years' imprisoment also, on the extraordinary grounds that their 
testimony agrees with that of the other three. 

The prisoners informed me that there had been many men confined 
in the same room with them, who had been placed there at different 
times, having been taken in the act of landing negroes, all of whom had 
been released, as they weie required for other slavers fitting out; and 
that there was a large crew there with them waiting for a vessel fitting 
out in the harbor, to sail in a week, when they would go on board. 



CASE OF THE BLACK WARRIOR, ETC 283 

I am not disposed to think that these men will be condemned. I 
cannot think that this government will commit such an act. 

Mr. Clayton wrote to the Captain General on the 7th in behalf of 
these men, but this office has not yet been favored with a reply. I en- 
close a copy of Mr. Clayton's communication. 

1 have the honor to be, sir, vour most obedient servant, 

WM. H. ROBERTSON, 

Acting Cojisul. 
Hon. Wm L. Marcy, 

Secretary of State, fyc 



Consulate of the United States, Havana, 

December 7, 1853. 

Most Excellent Sir : I have been instructed by the government of 
the United States to solicit the attention of your excellence' to the case of 
nine American seamen who have been imprisoned in Havana for some 
time past, charged with a violation of the laws of Spain in regard to 
the slave trade. I understand that three of the nine have had a trial, 
but that no judgment will be rendered in the matter until the other six 
have been likewise tried. 

In their depositions they have declared that they shipped upon the 
vessel without knowing the purpose of the voyage, and that from 
necessity, and not from choice, they were against their will compelled 
to do duty on the return voyage as sailors. There is no testimony op- 
posed to their statement. It would seem, then, from these facts, that 
they acted without criminal intent, and are innocent in point of fact. 

The government of the United States has been given to understand 
that certain subjects of Spain who were arrested and imprisoned for 
the same offence had been set at liberty without trial. It would tend 
very much to promote the harmony and good feeling which now subsist 
between the two governments if the same course were pursued in refer- 
ence to the American seamen. This act of courtesy in the commence- 
ment of your excellency's administration would be property appre- 
ciated by the American government, and would no doubt meet with a 
suitable reciprocity if occasion should offer. 

I am directed, also, to state to your excellency that if this request 
should be granted, and the prisoners delivered to an American officer, 
they will be carried to the city of New York for the purpose of giving 
evidence there against the parties supposed to be concerned in fitting 
out the vessel on which they shipped, so that the reallv guiltv may be 
punished. 

A reply to this communication at as early a day as may be compatible 
with the convenience of your excellency will be regarded as an especial 
kindness. 

I have the honor to be, &c., 

ALEX. M. CLAYTON. 

His Excellency the Marquis de la Pezuela, 

Governor and Captain General of the Island of Cuba. §'c. §c 



284 CASE OF THE BLACK WARRIOR, ETC 

Mr. Robertson to Mr. Marcy. 

[No. 12.] Consulate of the United States, Havana, 

January 5, 1854. 

Sir : On the 31st ult. I received from the Captain General a reply 
to Mr. Clayton's communication of the 7th, (of which I sent you a cop} r 
on the 21st ultimo,) requesting the release of the American seamen, the 
crew of the bark Jasper. Accomparrying this I send a copy of the 
answer, by which you will perceive that the Captain General took um- 
brage at certain expressions in Mr. Clayton's letter, and that he has de- 
clined to accede to the request. I have replied, on the 3d instant, to his 
excellency's letter, and now forward you a copy of mine, hoping that 
the contents thereof will meet your approbation. 

I entertain very little doubt that the seamen will be liberated, and I 
am inclined to think my letter may hasten that result. If such is to be 
the case, I sincerely hope it may be before Judge Clayton's successor 
arrives, as I should regret extremely that any other should have the 
gratification of leading them forth to liberty from the unjust imprison- 
ment, and sending them home to their families. If success is obtained 
by me, I shall consider myself amply compensated for many days of 
toil in their behalf. 

I have the honor to be, sir, with great- respect, your most obedient 

spfvirit 

WILLIAM H. ROBERTSON, 

Acting Consul. 
Hon. William L. Marcy, 

Secretary of State of the United States, Washington. 



[Translation.] 

{L. S.] 

EVER FAITHFUL ISLAND OF CUBA.— GOVERNMENT AND CAPTAIN GENERALCY, OFFICE OF THE 
POLITICAL SECRETARY, SECTION FIFTH. 

Having transmitted to the royal " audiencia pretorial" (superior 
court) your lordship's official communication of the 7th instant, in ref- 
erence to several seamen of your nation belonging to the American 
bark Jasper, that discharged 280 bozal negroes in the Bight of Cor- 
tes, jurisdiction of Pinar del Rio, upon which occurrence a criminal 
proceeding is pending in the first chamber of justice of said superior 
court, to which they are subjected, and they are imprisoned in the 
royal jail, the court have informed me, under date of the 23d, that the 
course of the proceedings, which are in conformity to our judicial 
forms, had not to that day suffered but the requisite delays on which 
the fate itself of said sailors is concerned, the same having passed to 
the lawyer of three of the last sjx to answer to the charges of the "fis- 
cal," (prosecuting officer,) conformable to the penal law of the matter. 
In such understanding, and they being considered in the same light as 
Spanish subjects, and with the same guarantees in the process, of which 



CASE OF THE BLACK WARRIOR, ETC. 285 

you are aware, as you have been on the look-out, and have even fur- 
nished them for their defence one of the distinguished lawyers of tnis 
capital for his ability and zeal in the exercise of his profession, it is to 
me very strange that it should have been given to understand to your 
government that some Spanish subjects, initiated and imprisoned for 
the same offence, had obtained from the tribunal a release from jail, 
without being tried. 

This odious difference, and the want of zeal for the right adminis- 
tration of justice that such a precedent involves, causes a serious offence 
to the well-known uprightness of the royal audiencia, and I therefore 
repel it. 

Consequently, and there not existing good motives for the release 
that your lordship claims, and less for your government to make depend, 
from the result of your lordship's exertions in this affair, the promotion 
of the harmony and good relations that subsist between it and that 
of my august sovereign, I regret that I cannot accede to the favor that 
your lordship solicts in your said communication that I am now an- 
swering. 

God preserve you many years. Havana, December 31, 1853. 

The MARQUIS DE LA PEZUELA. 

The Commercial Agent 

in charge of the Consulate of the United States. 



Consulate of the United States, Havana, 

January 3, 1854. 

Most Excellent Sir : I had the honor to receive, on the evening 
of the 31st ultimo, your excellency's official communication of that 
date, in reply to one from this consulate of the 7th of the same month, 
written by order of the government of the United States, and contain- 
ing a request that the nine American seamen who had the misfortune 
to come to this island in the bark Jasper, should be set at liberty. 

These seamen have undergone long imprisonment and suffering. As 
no evidence has been presented to contradict their statements, in which 
they all have declared their innocence of any intent to infringe the laws 
of Spain, my government came to the conclusion that they were inno- 
cent in point of fact. 

It has never been intended by the government or by this consulate 
to assert that the judicial forms of the country have not been complied 
\^th in the case. I am aware that, so far as regards the prisoners, 
those forms have been observed. Still, my government deems it very 
strange that the Spanish subjects, and others who belonged to the Jas- 
per, and who were really the guilty parties, have escaped and that 
only the American part of the crew have been made to suffer for the 
act of landing the slaves. 

Your excellency feels indignant at the information given to my gov- 
ernment that several Spanish subjects, arrested and imprisoned for the 
same crime, had been released without being tried, as it involves a 
a serious offence against the well-known uprightness of the ro} r al audi- 



286 CASE OF THE BLACK WARRIOR, ETC. 

encia. I beg to assure your excellency that no offence was intended 
by' Mr. Clayton when he made the statement in his letter. He desired 
to convey to your excellency the fact that the government of the United 
States having been given to understand that such releases had taken 
place. The government continually receives information from this 
island that, notwithstanding all the vigilance and energy of the Spanish 
authorities and naval forces, as well as the efforts of the British cruis- 
ers, many cargoes of slaves are landed upon the island, and very few 
captures are made, and the parties concerned and engaged in such im- 
^ portations are not discovered. 

This leads the government of the United States to apprehend that 
distinctions are made to the prejudice of those men because they are 
Americans, or call themselves such. 

It is the wish and intention of the President of the United States to 
preserve and promote the harmony and good relations that have so 
long subsisted between his government and that of her Catholic Majes- 
ty ; but, at the same time, he stands pledged before the country, and 
the world, to extend his protection to the citizens of the United States 
abroad, when such citizens find themselves in difficulty not brought on 
by an intentional disregard or contempt of the laws of other countries. 
He cannot make distinctions between individuals — it makes no difference 
if they are sailors or senators ; all are equally entitled to the watchful 
care and protection of the government. 

From the nature of the last dispatch received at this office from the 
State Department, I am led to believe that my government considers 
that all the exertions made by this consulate to obtain the release of 
those seamen have been unnecessarily and coldly diregarded. I there- 
fore deeply regret that your excellency should have come to the deter- 
mination not to accede to the last request ; that determination will be 
transmitted to my government. I sincerely hope that it may not pro- 
duce a weakening effect upon the relations between the two govern- 
ments. 

I have the honor to be, with great respect, your excellency's very 
obedient servant, 

WM. H. ROBERTSON, 
Vice Commercial Agent in charge of Consulate. 

His Excellency the Marquis de la Pezuela, 

Governor, Captain General, Sfc, Sfc, Sfc, of the Island of Cuba. 



Mr. Robertson to Mr. Marcy. 

[No. 18.] Consulate of the United States, Havana, 

January 12, 1854. 

Sir: I called } r esterday at the jail for the purpose of taking some 
money and necessaries to the unfortunate American seamen. One of 
them handed me the inclosed note, by which you will perceive that all 
but two of the Spanish prisoners that were there for being engaged in 
the slave trade have been released. Our seamen told me that those 
parties had stated that they were about to embark for the coast imme- 



CASE OF THE BLACK WARRIOR, ETC 



287 



diately. They likewise informed me that they had lately passed two 
entire days without food of any kind. They exhibited to me their 
dinner of that day, which consisted of about two ounces of bad meat, 
and a quarter of" a plate of dirty-looking rice. Their complaints are 
very strong. I have no answer to the communication I wrote to the 
Captain General on the subject of these men, and presume he is waiting 
for the action of the superior court. 

I have the honor to be, sir, with great respect, your obedient servant, 

WM. H. ROBERTSON, 

Acting Consul. 

Hon. Wm. L. Marcy, 

Secretary of State of the United States, Washington. 



Havana, January 10, 1854. 

Dear Sir : I wish to inform you that they set all the slaves at liberty 
on Monday, but two. On Sunday morning the prisoners had a row 
about their rations, and sent for the governor, and told him that there 
was not enough there for everybody ; there was wanting thirty men's 
rations, so we had no breakfast that morning. The meat was so stink- 
ing that we could not bear the smell of it ; the same rice was sent up 
for dinner ; there, was not enough for everybody, and, feing strangers, 
of course had to go without ; so all we had was about two ounces of 
bread. We hardly get enough any day to cover the bottom of our 
plates — say about "five or six mouthfuls. There was a man stabbed 
here on Monday night ; he was carried to the hospital. 

On Tuesday morning there was a man beat nearly to death ; he 
struck the man that was serving out the coffee, because he would not 
give him any ; he now lies in the hospital in a very precarious state ; 
if he lives, he will never be of any use to himself; he is completely 
ruined for life. You would oblige me if you would let me have v sev- 
enteen dollars, and two or three papers, if you have them to spare ; 
they will keep us from worrying so much. Hoping to have the pleasure 
of seeing you soon, 

I remain, yours respectfully, 

WILLIAM ATKINS. 



Mr. Robertsons certificate. 

Consulate of the United States, Havana. 
On the day of the date hereof, I, William H. Robertson, acting con- 
sul of the United States of America for Havana, at about 9 o'clock a. 
m., called at the royal jail of said city, where the American seamen, 
William Freeburn, William Atkins, and Harvey C. Parks, are impris- 
oned, and asked them for the sheet of paper hereto annexed, contain- 
ing one interrogatory on each page of the same, which I had left with 
them some days since, requiring them to write their answers in continu- 
ation. They handed me the said sheet; and being by me sworn, 



288 CASE OF THE BLACK WARRIOR, ETC 

through the grates of their cell, they, said seamen, solemnly and sin- 
cerely declared that the answers they have appended to my interroga- 
tories are, to the best of their knowledge and belief, true and correct. 

In testimony whereof, I hereunto set my hand, and affix the seal of 
r -, my office at Havana, this sixteenth day of January, Anno 
*- ' "-• Domino, eighteen hundred and fifty-four. 

WM. H. ROBERTSON. 



Interrogatories propounded by William H. Robertson, acting consul of the 
United States at Havana., to William Atkins, William Freeburn, and 
Harvey C. Paries, seamen now in the public jail of Havana, and to be 
answered by said seamen. 

1. How many individuals, Spanish or other nations, (as near as 
3 r ou can judge,) have been in the jail since your confinement in it, for 
being concerned or engaged in the slave trade ? If any have been, and 
you know the names and other circumstances of them, or of any part of 
them, state the same. 

In answer to the above, to our knowledge, there have been thirty-two 
prisoners, not including ourselves, all Spanish but four Manilla men ; 
all have brought slaves from the coast except eight that were captured 
by an English man-of-war, when they were about proceeding to the 
coast ; they are captain and seven others, sailors, all Spanish ; their 
names we do not know. There has been a crew of twenty confined in 
the same apartment that we are in : they were captured on the south 
coast of this island. Previous to their capture they landed two hundred 
and fifty slaves that they brought from the coast of Africa, and set fire 
to the vessel, a schooner ; we do not know the full names of any of 
them ; four of them are Manilla men — the rest are all Spanish. They 
landed their slaves about one month after the Jasper's slaves were 
landed ; there were also two for assisting to land slaves. There is a 
Spanish mate belonging to the ship Ellen Parks, sailed 13th December, 
1852, from New York to Mozambique, back to the island of Cuba, 
with eleven hundred negroes ; none of the crew were arrested that be- 
longed to the ship. 

2. How many of said individuals do you believe (from information 
received by you, and that you may consider entitled to credence) have 
been tried by the courts ? If you know the names of all, or part of 
those tried, state them. 

The crew of twenty that belonged to the schooner has been tried by 
the court ; four were liberated on the plea that they were passengers 
from the coast. We cannot give their names, because we do not know 
them ; one of the four that were liberated as passengers, spoke pretty 
good English ; from him we gained our information. We don't know 
that there has been any more tried by the court, except it be the Span- 
ish mate, whom they wish to serve six months in one of their men-of- 
war, but to which he says he will not give his consent. 

3. Have any such individuals left the prison ? In what way did 
they leave it? In what number at any one time ? 

The captain and seven sailors that were arrested by the English 



CASE OP THE BLACK WARRIOR, ETC 289 

man-of-war have left the prison, but in what way we do not know; 
they were not in the same apartment with us. 

Four of the twenty were liberated as before mentioned; the remain- 
ing sixteen were liberated about two weeks since. 

The two men for assisting to land slaves have also left the prison, 
as we understand — have been liberated. 

4. State, as near as you can, their history, and conversations relating 
to the cause of their imprisonment, and other things connected with it 
and their release, during the time that such persons were confined in 
the jail. 

The crew of the schooner that brought two hundred and fifty ne- 
groes state, in their conversations, that they left the south side of this 
island, having previously shipped for the slave trade in Havana, pro- 
ceeded to the coast of Africa, there shipped four more men that had 
been engaged in the traffic on shore ; took two hundred and fifty ne- 
groes on board, and came to this island and landed them, and set fire 
to the schooner close to the place where the Jasper was burnt ; they 
told us that it was through us that they were arrested ; they said that 
the officers that were in search of the remainder of our crew happened 
to come across them, and took them in custody ; however, they said it 
did not make much difference to them — they were getting the same pay 
that they got all the voyage, and good board found them from outside 
the prison, which we know to be the fact ; they said that when they 
were asked where they were from, they did not deny coming from the 
coast of Africa, but said they brought no negroes ; this they told to the 
authorities. The four that got clear at first, as passengers, were no 
more passengers than the rest ; they got the same wages, which was 
forty-five dollars a month and a negro each ; so they told us in their 
conversation. 

WILLIAM FREEBURN. 
WILLIAM ATKINS. 
HARVEY C. PARKS. 



Mr. Marcy to Mr. Robertson. 

[Extract.] 

Department of State, 

Washington, January 18, 1854. 

Sir: * * * * * * 

Your letter to the Marquis de la Pezuela, in reply to his communica- 
tion of the 31st of December, in respect to the American sailors form- 
ing a. part of the crew of the " Jasper," and now confined in Havana, 
receives the entire approval of the department. 

The answer, however, which the Captain General has given to the 
letter addressed to him by the late consul, is not fully satisfactory to 
the President. 

It will be remembered that some of these men have been imprisoned 
more than eight months, awaiting a decision in their case by the Spanish 
19 



290 CASE OF THE BLACK WARRIOR, ETC. 

authorities ; that their condition is one of great hardship and extreme 
suffering, confined as they have been in a tropical climate, through a 
sickly season, in a Cuban prison. No wonder they declare that "their 
condition is becoming every clay more desperate ! " Had it not been 
for your own friendly and zealous services, and the pecuniary relief 
which, as the department has learned, you have extended to them, 
their fate would have been wretched indeed. 

The protracted delay attending the official proceedings in their case 
has excited sympathy in their behalf in this country, where the right is 
not questioned of requiring a strict account from the executive govern- 
ment of all circumstances that appear to be an infringement by foreign 
governments of the rights of American citizens. 

As you well remark in your letter of the 3d of January, it is the 
wish and intention of the President to preserve and promote the harmony 
and good relations that have so long subsisted between this government 
and that of her Catholic Majesty ; but, at the same time, he stands 
pledged before the country and the world to extend his protection to 
citizens of the United States abroad, when such citizens find themselves 
in difficulties not brought on by any intentional disregard or contempt 
of the laws of other countries. He cannot make distinctions between 
individuals — all are equally entitled to the watchful care and protection 
of the government. 

Trusting in the rectitude of the Cuban authorities, and their desire 
to administer impartial justice in the judicial tribunals of the island, 
the President has refrained in this case, hitherto, from adopting any 
course that might place the Cuban authorities in an unfavorable light 
before the American people, or disturb the harmony now subsisting 
between the United States and Spain ; but forbearance towards a 
foreign power may be carried to an extent which is inconsistent with 
the duty which the President owes to his own countrymen. He still 
trusts that such may not be the case in relation to these men ; but the 
warm interest taken in their fate by persons of high standing and in- 
fluence in this country, as well as a regard for right and justice, de- 
*/ mand, as the President believes, more attention on the part of the Cuban 
authorities to this case, and a speedy and just settlement of it, if they 
desire to preserve friendly feelings between the two countries. 

You will request from the proper authorities, unless the trial be very 
shortly terminated, authenticated copies of the charges against these 
American citizens, and the proofs by which it is supposed they can be 
sustained, for transmission to this department, to be laid before the 
President. 

Your especial attention is likewise called to the instructions given to 
the late consul, Mr. Clayton, on the 8th of November last, in relation 
to the strict observance of the 7th article of the treaty of 1795, relative 

to the rights (Of persons prosecuted for alleged offences. 

# .# * # # ' # * * 

I am, sir, &c„ &c, 

W. L. MARCY. 

W. H. Robertson, Esq., 

Acting United Mates Consul, Havana, Cuba. 



CASE OF THE BLACK WARRIOR, ETC. 291 

Mr. Robertson to Mr. Marcy. 

[Extract.] 

[No. 20.] Consulate of the United States, Havana, 

January 21, 1854. 
g IR .####### 

I have received no reply to ray last letter to the Captain General in 
behalf of the imprisoned seamen. I am informed that the court, on the 
17th instant, decreed that they should be allowed fifteen days to pro- 
duce their proofs to the judge commissioner. This seems to be an end- 
less affair. The unfortunate men were all alive yesterday, but several 

of them are in a feeble state of health. 

# # * « # 

I have the honor to be, sir, with great respect, your obedient servant, 

W. H. ROBERTSON, 

Acting Consul. 
Hon. Wm. L. Marcy, 

Secretary of State. 



Mr. Marcy to Mr. Florence. 

Department of State, 

Washington, February 3, 1854. 
Sir : In reply to the inquiry made by Mr. J. Cowperthwaite, of Phil- 
adelphia, in regard to the present condition of the American sailors 
now confined in Havana, charged with having been engaged in the 
slave trade, I transmit, herewith, extracts from two recent dispatches 
of Mr. Robertson, the acting United States consul, which contain the 
latest information on the subject in possession of the department. 

I am, sir, &c, 

W. L. MARCY. 
Hon. T. B. Florence, 

House of Representatives. 



Mr. Robertson to Mr. Marcy. 
[Extract.] 

[No. 24.] Consulate of the United States, Havana, 

February 7, 1854. 
Sir: ##*#### 

Allow me, sir, to express to you the great satisfaction I have experi- 
enced at the contents of your dispatch of the 18th January, as it con- 
veys to me your approbation of my conduct in regard to the unfortunate 
seamen who have been so long suffering under a most unjust imprison- 



292 CASE OP THE BLACK WARRIOR, ETC 

ment. Be so good as to accept my sincere thanks for your kindness. 
Since the receipt of" your instructions, I have not addressed the Captain 
General. The trial of the prisoners has been consummated. I received 
* * * information that they are to be arraigned before the superior 
court at the close of this or the beginning of next week, to receive sen- 
tence. It is not known what the sentence will be. 

Should I discover any more delay, I will then lay before the Captain 
General the views of the department, that he may know what the con- 
sequences of the policy of his government will be. Whether the men 
are condemned or not, I shall demand an authenticated copy of the pro- 
ceedings against them, to forward to the department. 

There is not one particle of evidence against the seamen but their 
own depositions. I have very strong doubts that the copy of these pro- 
ceedings will be furnished, but I shall, of course, demand it. 

The Captain General has not yet been pleased to reply to my letter, 
which you have done me the honor to commend. 

I have the honor to be, sir, with great respect, your obedient servant, 

WM. H. ROBERTSON, 

Acting Consul. 
Hon. Wm. L. Marcy, 

Secretary of State of the United States, Washington. 



Mr. Robertson to Mr. Marcy. 

[Extract.] 

[No. 27.] Consulate of the United States, Havana, 

February 14, 1854. 

Sir : I have the honor, in my dispatch No. 24, dated 7th instant, 
and forwarded per steamer Isabel to Charleston, to acknowledge the 
receipt of yonr dispatches of the 18th and 24th ultimo. I stated to 
you that if I discovered any more delay in the case of the imprisoned 
American seamen, I would lay your views, in regard to their case, 
before the Captain General. Finding, on the evening of last Saturday, 
that no decision had been come to by the authorities, I addressed a 
communication, a copy of which I now have the honor to enclose 
herewith, hoping that it may also meet your approbation. 

I cannot withhold from you, sir, my feelings of indignation at the 
extraordinary delays and sufferings that these American citizens have 
been made to experience in being confined in cells with upwards of 
one hundred and fifty criminals, charged with the highest to the lowest 
grades of crime. I have repeatedly remonstrated, to the Captain Gen- 
eral, against this treatment of men who were not yet declared guilty, 
but very little, or rather no notice, has been taken of my remonstrances, 
except once, when General Cailedo candidly replied that the jail was 
the usual place where criminals, and those that were believed to be 
such, were confined, and that their situation could not be changed. In 



CASE OF THE BLACK WARRIOR, ETC 293 

this manner the accused are made to undergo severe punishment for a 
long time before their cases are decided. As for the food allowed the 
prisoners, I have seen it once or twice, and I assure you that it was not 
only insufficient in quantity, but of the very worst quality. 

It will probably be in my power to send you shortly a detailed ac- 
count of the whole of this affair, from the time of the Jasper's arrival 
on the coast of Cuba, with the names of the owners and the other par- 
ties concerned in the cargo. 

I have the honor to be sir, with great respect, your very obedient 
•servant, 

WILLIAM H. ROBERTSON, 

Acting Consul. 
Hon. William L. Marcy, 

Secretary of State of the United States, Washington. 



Consulate of the United States, Havana, 

February 11, 1854. 

Most Excellent Sir : It is now upwards of one month since I had 
the honor of addressing your excellency on the subject of the unfortunate 
American seamen composing the crew of the bark Jasper, confined in 
the jail — some of them for more than eight months past — without any 
charge against them other than their own declarations, which clearly 
prove their innocence. Copies of your excellency's official letter, in an- 
swer to that of the consul, Mr. Clayton, and of mine to your excellency, 
• of the 3d of January ultimo, on that subject, were, at the propei time, 
transmitted to my government ; and, a few days since, I received a 
■dispatch from the honorable the Secretary of State, wherein, among 
other things, I was informed that my communication to }rour excel- 
lency of the 3d of January " has received the entire approbation of 
the department," and that the contents of your excellency's letter of 
the 31st December " is not fully satisfactory to the President." 

Although my communication before mentioned has received, so far 
as I know, no notice from your excellency, I have refrained from 
making any further observations, in the hope that my unfortunate coun- 
trymen would, ere this, have been placed at my disposal ; but finding 
that week after week has passed without a satisfactory result, but that, 
■on the contrary, these men are still imprisoned, associated with crimi- 
nals charged with the highest to the lowest of crimes ; that they are un- 
dergoing such punishment as criminals justly condemned only should 
be made to undergo ; and that their sufferings are daily increasing — for 
even their food has been reduced to such a small quantity, and of such 
bad quality, that they would starve to death, were it not for the pe- 
cuniary relief afforded them by this consulate — I cnnnot, after hearing 
their just complaints, remain silent any longer. I deem it to be my 
bounden duty to communicate to your excellency the views of my 
government in regard to this matter. 

The honorable the Secretary of State, under date of 18th of January 
ultimo, said to me as follows : " It will be remembered that some of 



294 CASE OF THE BLACK WARRIOR, ETC 

these men have been imprisoned more than eight months, awaiting a 
decision in their case by the Spanish authorities ; that their condition 
is one of great hardship and extreme suffering, confined, as they have 
been, in a tropical climate, through a sickly season, in a Cuban prison. 
No wonder they declare that their condition is becoming every day more 
desperate. Had it not been for your friendly and zealous services, and 
the pecuniary relief which, as the department has learned, you have 
extended to them, their fate would have been wretched indeed. 

" The protracted delay attending the official proceedings in their case 
has excited sympathy in their behalf in this country, where the right 
is not questioned of requiring a strict account from the executive gov- 
ernment of all circumstances that appear to be an infringement by for- 
eign governments of the rights of American citizens. 

" As you well remark in your letter of the 3d of January, it is the 
wish and intention of the President to preserve and promote the har- 
mony and good relations that have so long subsisted between this gov- 
ernment and that of her Catholic Majesty ; but, at the same time, he 
stands pledged before the country and the world to extend his protec- 
tion to citizens of the United States abroad, when such citizens find 
themselves in difficulties not brought on by an intentional disregard or 
contempt of the laws of other countries. He cannot make distinctions 
between individuals ; all are equally entitled to the watchful care and 
protection of the government." 

Your excellency will perceive that the foregoing last paragraph con- 
tains almost the very words used in my letter above referred to ; it 
will show that they were not used at random, but expressive of the 
spirit of my country's institutions, and of the policy of the adminis- 
tration in whose hands the destinies of the nation have been placed by 
the suffrages of the people. 

The Secretary of State continues : " Trusting in the rectitude of the 
Cuban authorities, and their desire to administer impartial justice in 
the judicial tribunals of the island, the President has refrained in this 
case, hitherto, from adopting any course that might place the Cuban 
authorities in an unfavorable light before the American people, or dis- 
turb the harmony now subsisting between the United States and Spain. 
But forbearance towards a foreign power may be carried to an extent 
which is inconsistent with the duty which the President owes to his 
countrymen. He still trusts that such may not be the case in relation 
to these American seamen ; but the warm interest taken in their fate 
by persons of high standing and influence in this country, as well as a 
regard for right and justice, demand, as the President believes, more 
attention on the part of the Cuban authorities to this case, and a speedy 
and just settlement of it, if they desire to preserve friendly feelings 
between the two countries." 

I must, therefore, in obedience to the call of duty, request your ex- 
cellency to have the American seamen before alluded to, without fur- 
ther delay, arraigned before the proper court to be sentenced or 
acquitted, or order that they be placed at the disposal of this consulate 
to be sent to the United States. I must also, in obedience to instruc- 
tions from my government, request of your excellency to be so good as 
to furnish me authenticated copies of the charges against these Ameri- 



CASE OF THE BLACK WARRIOR, ETC 295 

can seaman, and the proofs by which it is supposed they can be sus- 
tained, for transmission to the Secretary of State, to be laid before the 
President of the United States. 

In the hope that this official letter will meet with more consideration 
than my last on the same subject, and that a friendly feeling towards 
my government will prompt your excellency to accede to my requests 
as above expressed, 

I have the honor to remain, with great respect, your excellency's 

verv obedient servant, 

WM. H. ROBERTSON, 

The Commercial Agent in charge of the Consulate. 

His Excellency the Marquis de la Pezuela, 

Governor, Captain General, Sfc, fyc, of the Island of Cuba. 



Mr. Robertson to Mr. Marcy. 

TNo. 30.1 Consulate of the United States, Havana, 

L J February 20, 1854. 

Sir: My dispatch No. 27 covered a copy of my last communica- 
tion to the Captain General in behalf of the Jasper's crew. I now 
have the honor to transmit a copy of his excellency's reply. This will 
clearly show that the consulate here is reduced to a mere commercial 
agency; that no rights are conceded to it, and therefore that American 
citizens are left without protection. The same vigilance, however, will 
be observed, while I remain in charge of the consulate, that has been 
practised since I commenced to discharge the duties of the office. I 
shall continue to remonstrate against any injustice towards my country 
and countrymen with the authorities here, and report to you the facts. 
My representations may be disregarded by the Captain General, but I 
shall in every case try to do my whole duty ; and should I meet with 
rebuke or insult I feel confident that the President will redress the 

wrong. 

I have the honor to be, sir, with great respect, your very obedient 

S6rVant ' WM. H. ROBERTSON. 

Hon. William L. Marcy, 

Secretary of State of the United States. 

P. S. — Sir: Since the foregoing was written, secret notice has been 
brought to me that the court have rendered their decision in the case 
of the American seamen, acquitting them, ordering that no costs be 
paid, and that the prisoners be set at liberty. I believe, however, that 
they will not be relieved till day after to-morrow. 

Very respectfully, m _ • 

WM. H. ROBERTSON. 



296 CASE OF THE BLACK WARRIOR, ETC. 

[Translation.] 

EVER FAITHFUL ISLAND OF CUBA.— OFFICE OF TUE GOVERNOR AND CAPTAIN GENERAL, POLITICAL 
SECRETARY'S OFFICE, SECTION FIRST. 

In answer to your official letter, dated 11th instant, relative to the 
seamen of your nation belonging to the American bark Jasper, I can 
only say to you that I will give the convenient explanations, and an 
account of the result of this cause, to her Catholic Majesty's minister 
at Washington ; such being also the instructions that I have from my 
government for this and any other similar cases. 

God preserve vou many vears. Havana, February 16, 1854. 

* 'el marques de la pezuela. 

The Commercial Agent 

in charge of the Consulate of the United States. 



Mr. Marcy to Mr. Cowperthwa.ite. 

Department of State, 

Washington, February 27, 3854. 

Sir : I have the pleasure to inform you that a telegraphic dispatch 
was received at the department this morning, stating that the "Isabel" 
arrived at Charleston on the 25th instant, bringing the information that 
the American seamen who have been so long confined in Havana, and 
for whom you felt so much interest, have been liberated and placed at 
the disposition of Mr. Robertson, the acting consul. 
I am, sir, &c, 

W. L. MARCY. 
J. Cowperthwaite, Esq., 

Philadeljihia, Pennsylvania. 



Mr. Robertson to Mr. Marcy. 

[Extract.] 

[No. 32.] Consulate of the United States, Havana, 

February 27, 1854. 
Sir : I have the honor, as well as the gratification, of informing you 
that the nine seamen composing the crew of the Jasper, so long and 
unjustly kept in prison here, have been at last set at liberty. They 
were released at about one o'clock on the 23d instant, without any 
notification, official or unofficial from any of the authorities, but were left 
to find their way to my office as best they could ; they were, however, 
sincerely welcomed, and immediately provided with suitable clothing, 
&c, of which they were entirely destitute. They were then sent on 
board the United States steamer "Fulton." Three of them, viz: Har- 



CASE OF THE BLACK WARRIOR, ETC 297 

vey C. Parks, William Freeburn, and William Atkins, will proceed in 
the steamer Black Warrior to New York, where they will be placed in 
charge, of the United States marshal, subject to your orders ; the other 
six, to wit : William Hussy, William Hersey, Charles Robinson, John 
Radcliffe, John William Leo, and George Hunt, will remain on board 
the " Fulton" until your directions are received as to the manner of dis- 
posing of them. 

I have requested the marshal in New York to furnish the captain of 
the Black Warrior, on his receiving the three seamen, such a document 
as may enable the captain to recover the passage money (thirty dollars) 
from the Treasury Department, as I look, of course, upon these sea- 
men as distressed. 

T have the honor to be, sir, with great respect, your obedient servant, 

WM. H. ROBERTSON, 

Acting Consul. 
Hon. Wm. L. Marcy, 

Secretary of State, Washington. 



Mr. Robertson to Mr. Marcy 

[No. 33.] Consulate of the United States, Havana, 

February 28, 1854. 

Sir : The nine seamen liberated from the prison where they were 
so long and unjustly confined by the authorities of this island have 
made their protest, and claim damages. They have, at the same 
time, executed an instrument in favor of D. E. Wheeler, esq., of New 
York, who is authorized to act for them. I have been requested by 
said seamen to lay their protest before you, which I now do, enclosing 
the same herewith ; 

And remain, sir, with great respect, vour verv obedient servant, 

WM. H. ROBERTSON, 

Acting Consul. 
Hon. Wm. L. Marcy, 

Secretary of State, Washington. 



Mr. Wheeler to Mr. Marcy. 

Havana, February 28, 1854. 

Dear Sir : At the suggestion of a number of American citizens 
temporarily in this city, and at the request of the nine unfortunate 
seamen who have lain in the royal jail here lor some time, I drew up 
the paper which Mr. Robertson, the acting Americal consul, transmits 
to the Department of State. 

These men have suffered beyond description since they were ar- 



298 CASE OF THE BLACK WARRIOR, ETC 

rested, and been kept in prison for many months against their remon- 
strance, and a.gainst the demands of their government, as made by the 
consul, and also by your department of the government, and they 
should, in some form, have redress; and it has seemed to us that this 
should be sought by them from the government under whose flag they 
sailed. 

This claim has been confided to my hands by them, and I trust it 
will be regarded as eminently demanding the attention of our govern- 
ment, and that her Catholic Majesty will be required to make such 
amends as shall be satisfactory to it, and compensate in some measure 
the unfortunate men whose crime seemed to consist in being American 
seamen. 

The six who do not return to the United States by the " Black 
Warrior" will remain aboard the steamer Fulton until some disposition 
shall be made of them by the Department of State, or until they shall 
recover from the effects of their imprisonment and be able themselves 
to return home. 

I trust, my dear sir, that your multifarious and arduous duties will 
not prevent you from giving the subject of this letter your early and 
earnest attention, that Spain at least may know that the American gov- 
ernment is not tardy in seeking redress for wrongs which her weakness 
or indolence inflicts. 

I now intend visiting Washington in returning to New York ; and if 
so, I shall do myself the honor to call at the Department of State in 
relation to this subject. ' 

With the highest considerations of respect, I am your obedient servant, 

D. G. WHEELER. 

Hori. Wm. L. Marcy, 

Secretary of State, Sfc., Sfc. 



To all to whom these presents shall come, greeting : Know ye, that 
we, the undersigned, now on board the United States steamer Fulton, 
Captain J. M. Watson, commander, lying in the port of Havana, 
island of Cuba, this 27th day of February, 18-54, do make and set 
forth the following statement of facts, together with our protest, and 
our claim, which we believe we are respectively entitled to under the 
laws and treaties of the United States of America : 

We severally and respectively shipped on board the bark Jasper, 
E. C. Townsend, master, at the port of New York, in the United 
States, on or about the 12th day of December, 1852, on which day 
the said bark sailed from New York for a trading voyage to the 
coast of Africa, taking out a cargo. That we arrived on the coast of 
Africa some time in the latter part of January, 1853 ; that nothing 
occurred on board the bark during the voyage to indicate to us that 
x the voyage was undertaken for any other purpose than that of an or- 
"dinary trading voyage. That upon our arrival at Cape Coast, we 
landed some of our cargo, and the balance of it we landed at Aa ainic u 
Here we took in some elephant's teeth and tobacco, and we then sailed 
southerly along the coast (touching at one or two small places) about 



CASE OF THE BLACK WARRIOR, ETC 



299 



fiity miles, and came to anchor on the 2d day of March, 1853. Imme- 
diately after dropping anchor Captain Townsend called us into the 
cabin, paid us our wages to that day, and informed us that he had sold 
the bark three days previous, at one of the small places we put into, 
to a Spaniard called Captain Joseph, who came out with the bark 
from New York as supercargo, as we were informed, and that the bark 
was going to Cuba, and that we could return in her, and must do so, 
for if we went on shore we should be murdered. On the same day 
boats came alongside containing slaves, and were being put on board 
under the direction of Captain Joseph and two Spaniards, who he 
appointed mates, and who went out in the bark from New York as 
passengers. Provision for the slaves and other materials for their con- 
finement were brought on board. There were about three hundred 
and sixty slaves, and three men to take charge of them and do other 
work on board the bark ; that Captain Joseph then proffered us wages 
to continue the work, and Captain Townsend urged us to go to work, 
stating that we could not help ourselves ; and we were obliged to do 
the ordinary duties of sailors on board the bark, as Captain Townsend 
left and went on shore, having previously discharged the first mate, 
John Brown, at Cape Coast. 

As soon as we could get ready we sailed, and on the 17th day of 
April we arrived at the southern side of the island of Cuba, and the 
slaves were immediately sent on shore. On the 19th of the same month 
the bark was run on a reef, set on fire, and abandoned. Previously 
to the bark being set on fire we were sent on shore in one boat, leav- 
ing on board the bark a number of men who had come on board 
from the shore and the Spaniard who acted as mate. The captain 
himself previously left. We were sent on shore without provisions ; 
and we believe it was the intention of those who brought the bark to 
the island to take our lives. We were not allowed to leave the point 
of land where we were landed, and were prevented from going away 
by men who were armed with cutlasses and knives, and everything we 
had was taken from us except what was upon our backs. On or about 
the last of April or first of May three of the undersigned found the long- 
boat of the bark, which had been concealed, and escaped in her, and 
went to Cape Antonio, where the three, namely, Harvey C. Parks, 
William Freeburn, and William Atkins, arrived on the 3d of May ; and 
upon the 5th of May the same three were arrested and senton board 
the Spanish man-of-war "Habanera," and put in double irons, and 
kept on board this ship in double irons thirty-five days, and then they 
were transferred to a merchant schooner and brought to Havana, after 
a voyage of sixteen days, and then sent on board a Spanish steam man- 
of-war lying in the Havana bay, and kept there for eight days, and then 
sent to a prison on shore in Havana, where they remained until they 
came on board the United States steamer Fulton, lying in the harbor, 
the 23d day of February, 1854. 

The remaining six of the undersigned remained upon the point 
where we were landed a few days after the above-mentioned three 
men left, and then were taken by a resident of the island of Cuba to 
his plantation, and kept there until the middle of July, when we were 



300 CASE OF THE BLACK WARRIOR, ETC. 

taken to the north side of* the island and there left. Here we remained 
about two months, and were provided with necessary food by a planter, 
and prevented from starvation. During this time we were seeking 
some means to get to Havana ; but we did not succeed until we found 
a Spanish schooner, which came to the shore. We went on board of 
her, and persuaded the captain to take us to Havana, that we could 
make known our situation to the American consul at that place, and 
claim his protection and aid ; but before the schooner sailed we were 
arrested by men from a Spanish man-of-war, and taken on board of 
her, and on the same day transferred to the same schooner, with orders 
to the captain of the schooner to deliver us to the captain of the port. 
Upon our arrival at Havana we were put on board the guard-brig, and 
kept on board of her twenty-one days, and then were transferred from 
the brig on the 11th day of September to the prison on shore, where 
we found the other three of the undersigned, except Wra. Hussy, who 
was sick, and was sent to the hospital, from whence he was sent to the 
prison about fifteen da}-s after the other five. That during these va- 
rious periods, and after the information of the sale of the bark, the un- 
dersigned declare ourselves innocent of any crime, and that we sailed 
from New- York under the American flag, and were entitled to the rights 
and privileges of American seamen. That, after being in prison two or 
three days, we were separated, or with one or two together taken into 
court ; but no crime was charged against any one of us to our knowledge 
or belief, but we were remanded to prison, and there confined until we 
were all discharged on the 23d day of February, 1854. That we were 
confined in prison, and in one room, with about one hundred and fifty 
prisoners, charged with all sorts of crimes, and kept with them in a. 
very filthy condition, with scarcely food sufficient to sustain life, and 
with no clothing except that with which we came from the ship ; that 
we were all turned out of prison with no information how or where to 
go from those who confined us ; that during our imprisonment we were 
assisted by Mr. Robertson, the acting American consul, and other 
Americans in Havana, and kept from the last horrors of starvation ; 
that the undersigned have always and universally demanded their rights 
as American seamen, and denied that they were guilty of any crime 
whatever, and protested verbally against the treatment that we have 
received from the Spanish government, without any apparent benefit. 
The undersigned do now in the most solemn manner set forth this 
brief statement of facts, and protest against the treatment which we 
have received from the Spanish government, its authorities and officials, 
and demand that personal satisfaction as American seamen we are 
entitled to, and appeal with confidence to the American government for 
that redress which her citizens or sailors can claim while in pursuit of 
business under her flag, or are wanderers in a strange land with a still 
stranger tongue, through the treachery and wickedness of an unworthy 
captain, or perhaps a still worse Spanish, fraudulent, and surreptitious 
commander. And while we thus appeal, we cannot forget or cease to 
record the great kindness received by us from our consul at Havana, 
and from other American citizens at this port. Our names and places 
of birth we affix to this instrument, and make them a part of it ; and 



CASE OF THE BLACK WARRIOR. ETC 301 

do sign it on board the United States steamer Fulton, Captain J. M. 
Watson, commander, in the harbor of Havana, this 27th day of Feb- 
ruary, 1854. 

WILLIAM ATKINS, New York. 
WILLIAM FREEBURN, Philadelphia, Pa. 
HARVEY C. PARKS, 

Marion, Wayne county, N. Y. 
his 
CHARLES X WM. HERSEY, New York. 
mark, 
his 
WILLIAM X HUSSY, Nantucket, Mass. 
mark, 
his 
CHARLES X ROBINSON, Philadelphia, Pa. 
mark, 
his 
JOHN X RADCLIFFE, Boston, Mass. 

mark. 
GEORCE HUNT, Baltimore, Md. 
JOHN W. LEO, Niagara county, N. Y. 



Consulate of the United States, 

Havana, Island of Cuba. 

On the day of the date hereof, I, William H. Robertson, acting consul 
of the United States of America for the city of Havana and the de- 
pendencies thereof, being on board the United States steamer Fulton, 
fyino- in the port of Havana, personally came and appeared William 
Atkins, William Freeburn, Harvey C. Parks, Charles William Hersey, 
William Hussy, Charles Robinson, John Radcliffe, George Hunt, and 
John Wm. Leo, seamen, to me known as the individuals described in 
the instrument in writing that appears on the two preceding pages ol 
this sheet, and on the four pages of the sheet hereto annexed; and said 
appearers, being by me severally sworn, did declare and depose that 
the said instrument contains the truth, the whole truth, and nothing but 
the truth. The said appearers subscribed their respective names to 
said instrument in my presence, and declared that they had signed the 
same as their voluntary respective act and deed. 

In testimony whereof, I hereunto set my hand, and affix the seal ol 

my office, (being requested to certify and testify the premises,) 
[l. s.] at Havana, this twenty- seventh day of February, A. D. eighteen 

hundred and fifty-four. & ROBERTSON. 




302 CASE OF THE BLACK WARRIOR, ETC. 

Mr. Wheeler to Mr. Marcy. 

Havana, February 28, 1854. 

Dear Sin : At the suggestion of a number of American citizens 
temporarily in this city, and at the request of the nine unfortunate sea- 
men who have lain in the royal jail here for some time, I drew up the 
paper which Mr. Robertson, the acting American consul, transmits to 
the Department of State. 

These men have suffered beyond description since they were ar- 
rested, and been kept in prison for many months against their remon- 
strance, and against the demands of their government, as made by the 
consul, and also by your department of the government; and they 
should, in some form, have redress, and it has seemed to us that this 
should be sought by them from the government under whose flag they 
sailed. 

This claim has been confided to m}^ hands by them, and I trust it 
will be regarded as eminently demanding the attention of our govern- 
ment, and that her Catholic Majesty will be required to make such 
amends as shall be satisfactory to it, and compensate, in some mea- 
sure, the unfortunate men whose crime seemed to consist in being Amer- 
ican seamen. 

The six who do not return to the United States by the "Black War- 
rior" will remain aboard the steamer Fulton until some disposition 
shall be made of them by the Department of State, or until they shall 
recover from the effects of their imprisonment, and be able themselves 
to return home. 

I trust, my dear sir, that your multifarious and arduous duties will 
not prevent you from giving the subject of this letter your early and 
earnest attention, that Spain at least may know that the American gov- 
ernment is not tardy in seeking redress for wrongs which her wicked- 
ness or indolence inflicts. 

I now intend visiting Washington in returning to New York ; and if 
so, I shall do myself the honor to call at the Department of State in re- 
lation to this subject. 

With the highest considerations of respect, &c, I am, &c, 

D. G. WHEELER. 



Mr. Robertson to Mr. Marcy. 

[Extract.] 

[No. 36.] United States Consulate, Havana, 

March 5, 1854. 

I send you another defence, made in behalf of the prisoners, which 
contains some interesting facts : it may prove interesting to you. I re- 
gret that we have not time to translate it, but we are both nearly 
broken down with labor night and day. 

With great respect, your obedient servant, 

W. H. ROBERTSON. 



CASE OF THE BLACK WARRIOR, ETC 303 

[Translation.] 

Don Jose Perez Ramos, attorney for John Radcliffe, Charles Ro- 
binson, and William Hersey, through the acting counsel for the defence, 
in consequence of criminal proceedings for the introduction of 280 ne- 
groes in Bayleu, jurisdiction of Pinar del Rio, according to law, I say : 

That there is not one single data in this process by which my clients 
can be considered as complices in the introduction of negroes from 
abroad (negroes bozalos) in the island. 

The penalty of four years' transportation, (imprisonment in the gal- 
leys,) insisted upon in the fiscal pleadings, (by the prosecution,) is not 
only unusual but enormous, and therefore unjust. Your highness, in 
the plenitude of your integrity, will not impose such penalty, but order 
the immediate release of the accused. 

In this process there is wanting legal evidence ; there is wanting the 
object with which, or through which, the crime has been committed, 
(cuerpo del deliz?) and the judgment of the court, so tar from condemn- 
ing, must be for acquittal. If the negroes, who are said to have been 
brought here, have not been taken, but, on the contrary, not a single 
one has been met with; if even the names of the owners, the captain, 
the pilot, and the crew, are unknown ; if not even fragments have been 
found of the ship itself, which is said to have been burnt — since the 
results of the inquiries made show the impossibility of designating as 
such the two hulls, the masts and rigging of which cannot be identified; 
if the allegement of facts is confined to one witness, seeing that every- 
body pleads ignorance in regard to the same ; in short, if nothing of what 
has been advanced upon this subject can be taken as legal proof, which 
is, then, the prima facie evidence of the crime? 

Are impressions, peradventure more or less fallible, sufficient to 
constitute the basis of an adverse judgment, and to end this noisy 
trial with the horrors of transportation ? However strong conjectures 
may be, they never can take the place of that which only belongs to 
the plenitude of proofs. We seek for these in the pages of the indict- 
ment, and we do not find them ; we examine the same with care, and 
the only thing that we encounter is the declaration of the American 
sailors that they have been victims, and nothing more. These declara- 
tions are not a confession of the crime, nor do they supply a pretext for 
condemnation, as we will proceed to demonstrate. 

The facts may and do exist in reality ; but when these facts come to 
be dealt with according to law — when the law requires the facts to be 
clearly sustained, at least with regard to data, and the proofs to be 
conclusive, and the analysis furnishes nothing of this kind — there is 
wanting, as we have stated, legal evidence ; and without it, no penalty 
can be imposed, however much moral evidence may float on the surface 
of the proceedings. What the law requires in order to condemn, is 
convictions, and not deductions — proofs, and not suspicions. It is proper 
that in the proceedings which are instituted against the person of an in- 
dividual, or against his signature, the charges should be proved and 
ascertained by means of evidence as clear as the light, about which no 
doubt can exist. From the moment that other principles are adopted, 
the guarantees of society are attacked and destroyed ; and arbitrariness 



304 CASE OF THE BLACK WARRIOR, ETC. 

being enthroned, this, and not justice, decides the fate, the honor, and 
the future welfare of families. This is so evident and reasonable, and 
so much in conformity with forensic practice, that our tribunals are 
wont to dismiss a case when the criminality of the party indicted is 
not proven, although the crime committed be evident — which is equiv- 
alent to saying, that the means employed in the investigation were not 
sufficient to demonstrate the responsibility of the accused, and that lor 
cases of this kind, the courts of judicature have certain doors open, 
without bringing the matter to a close by an absolute acquitment. In the 
present instance, there is even less than this. Why? Throughout the 
whole record of these extensive proceedings, there is no evidence of the 

^ introduction of the negroes in question, nor any proof of the crime 
having been committed. Such is the impartial result which a careful 
examination of the proceedings has produced. 

We are not astonished at this result. The immoral and barbarous 
negro traffic, which converts men into articles of merchandise, which is 
degrading and disgraceful to those engaged in it, has unfortunately 
found numerous advocates, as the fiscal acknowledges, and it is seldom 
that the action of the tribunals has succeeded in penetrating through the 
utter darkness with which interest, cupidity, corruptions, and cunning 
have enveloped this crime, which reason, law, and humanity alike con- 
demn. 

For this reason your highness will perceive, that although the col- 
lector of the royal revenues asserts in his communication that the 
rumors about two hundred and eighty negroes having been imported at 

' the point of Bayleu were notorious, there is not one single individual 
that will certify to the fact. There is not a solitary word in these 
pages, therefore, with the exception of the declarations of the sailors, 
that throws light upon the commission of the act. Hence the citations 
from the communication of her Brittanic Majesty's consul were entirely 
of a negative character. Hence the existence of the crime has not been 
proved. We do not allege it, however, as a truth, as it has been set 
forth in the fiscal pleadings, that the country is in favor of the importa- 
tion of Africans. In a greater or lesser degree, the same thing occurs 
in the investigation of grave outrages : they have always taken place — 
they have been witnessed — are known and referred to; and the same 
persons who, in private, assert the facts, and give accounts of the mi- 
nutest details, when they are called upon to testify in a court of justice, 
have nothing to say, and are ignorant of everything. There is, un- 
fortunately, a certain degree of fear associated with the courts of law, 
as a public institution, which is fatal in itself, because it affords impu- 
nity to crime, and renders the powerful arm of the tribunals useless. It 
is to this custom, originating in ignorance and in error, and which the 
efforts of an enlightened public opinion alone can put down, that the 
profound silence observed on such occasions, and the want of data for 
judicial decisions, is owing. Shall it be said, on this account, that the 
country where such things come to pass is in favor of the impunity of 
crime ? Shall it be said that it encourages and desires crime '( Cer- 
tainly not. There are evils which are coeval with the condition of the 
people ; and the. people have a social education, which, like their intel- 
lectual or private education, influences all their actions. However diffi- 



CASE OF THE BLACK WARRIOR, ETC 305 

cult it may be to note the beginning of this influence, it is nevertheless 
felt and perceived in all that occurs. To the legislator as well as to 
the jurist, to the latter as well as to the observing man, the facts which 
present themselves are never isolated. The obscurity prevailing in 
these investigations, the useless labors attending the multitude of meas- 
ures that have been adopted, the silence and the negatives pitted against 
the activity and skill of the magistrate, do not indicate that the coun- 
try is for the introduction of Africans, nor for the infraction of treaties, 
the observance of which is so much insisted upon. It is the result of 
other causes, the discussion of which would lead us astray from the 
case before us. It is nevertheless a fact in point ; a fact which con- 
cerns the defence, and which cannot be allowed to pass unnoticed, 
when a proper appreciation of the truth is of so much importance in the 
proceedings. 

John RadclifFe, Charles Robinson, and William Hersey, are not com- 
plices in the importation of the 280 negroes who are said to have been 
fraudulently landed at Bayleu : they were the victims, and not the de- 
linquents ; the deceived, and not the deceivers ; and between the two 
characters, there is the enormous difference which separates crime 
from innocence ; the fiscal department not being able to find a just 
cause for indictment, there being not a single article in the penal law 
which embraces the case in question, inasmuch as these persons have 
not been detected, either at sea or on land, in the commission of crime ; 
nor did the vessel sail from this island ; nor were there any negroes 
captured, there being not the least indication, with the exception of 
their own declarations, either of the expedition, owner or captain. The 
department aforesaid has considered as a confession of the crime, the 
very exception, which would have acquitted the accused parties of it if 
the disembarcation had been established, which is not the case. That 
the sailors sailed from New York in the American bark Jasper, for Af- 
rica, for purposes of lawful trade ; that as soon as they saw on board 
negroes for the slave market, they refused to continue on their voyage ; 
that they did not accomplish anything in consequence of the distance 
they were from any coast where they might find a consul of their na- 
tion ; that they were conveyed to the southern part of this island ; that 
they proceeded to Cape Listic with a boat, the captain, pilot, and offi- 
cers of the brig, which the latter set on fire, having gone off; and that 
while they were trying to procure assistance at Cape San Antonio they 
were arrested, and taken on board her Majesty's steamer Gaudalquiver— 
is what appears from their declarations. There is not an article in the 
penal law which can be applied to the present case. The only charge 
which has been brought against them, with a show of legal fairness, 
does not only contain its own reply, but its own refutation. Why did 
they continue on the voyage, they were asked, when they had ascer- 
tained that the object of that voyage was to carry on the prohibited/ 
traffic of slaves ? Because, the victims of deceit in the first instance, 
they were subsequently the victims of force and of circumstances. 

It is an original mode of proceeding, that whereas, according to law, 

the charges must be made to rest upon the results of the investigation, 

the only charges that have been preferred in this case rest solely 

upon the declarations of the accused themselves. Throughout the 

20 



306 CASE OF THE BLACK WARRIOR, ETC. 

whole summary proceedings, almost, there does not appear any legal 
charge, which is very much in favor of their innocence. These sailors 
Y were ignorant of the true object of the expedition ; nor did they pause 
to inquire into the same, bound as they were already, with regard to 
time, destination and wages ; and having likewise been impressed with 
the legitimate object of the expedition, without any reason on their part 
for suspecting that they were the victims of circumstances, the com- 
bination of which was force, and an invincible force, because in that 
maritime latitude, at an enormous distance from the coast, and without 
the support which a consul oi their nation might have afforded them, 
they had to succumb, and did succumb, in so critical a station. If Rad- 
cliffe, Robinson, and Hersey had been criminals, as it is supposed, they 
would have "gone with the captain and the other officers of the ship, 
when, after having landed the negroes and fired said vessel, they could 
have saved themselves by flight. They prefer, however, to remain ; 
they do not follow in company with those who had vilely deceived 
them ; they suffer hunger and privations ; they remain in an unknown 
land, the language of which they do not speak ; they descend in a boat, 
are arrested, imprisoned. And yet charges are brought against them ; 
still they are indicted for an act in which they did not voluntarily take 
part; they are unfortunate, and on account of this misfortune an indict- 
ment is filed against them, for the purpose of consigning them to prison, 
with hard labor. We do not know any one, they said ; we are stran- 
gers in the country ; we do not know whither to wend our steps ; we 
did not go to the authorities whom we did not know either, because we 
might be questioned, imprisoned and prosecuted. The authors of the 
crime were far away and in safety ; the deceived sailors had no means 
to return to their country, and there to exercise their rights. There is 
nothing criminal in this ; there is no ground for charges, and the facts 
are satisfactorily explained. 

Your highness will see that nothing has been proved in regard to the 
crime ; that not a single negro has been taken ; that neither the owners 
nor the officers of the vessel are known ; that it has not even been as- 
certained who has purchased these slaves ; that the investigation has 
been carried as far as the most interior plantations, causing the magis- 
trate to appear — his dependents, servants, and even the slaves of those 
plantations — all of whom have been questioned ; that the inquiries 
made about the vessel in those waters by the sub-delegate of marine 
have not brought forth any evidence, seeing that it is stated in the report 
that, inasmuch as the masts and rigging of the "Jasper" are not known, 
the two hulls that were seen there cannot be designated as appertaining 
to the same — everything remains in obscurity and mystery. Colonel 
Villers, lieutenant governor of Pinar del Rio, who was the responsible 
local authority, is acquitted for want of evidence ; the petty justice of 
the district is likewise acquitted ; they are both restored to their re- 
spective offices ; and yet there are other men of low condition, foreign- 
ers, who are wandering at random in our seas, without the means of 
subsistence, and shall the consequences of the process be applied 
against them only ? Your highness will not permit it. 

If these declarations are of no validity whatever, as your highness 
has demonstrated, by acquitting the functionaries of Pinar del Rio, who 



CASE OF THE BLACK WARRIOR, ETC 307 

are responsible for the vigilance of those coasts— if they were not 
sufficient to convict those officers of neglect of duty, shall they now 
suffice for the condemnation of these poor men, when, before, they 
offered no obstacle in the way of an acquittal ? It were, at least, ab- 
surd to conceive of so invidious a distinction — such a monstrous con- 
trariety, when the rules of judicial action, solemn and severe, are 
fixed, invariable, and decisive of the rectitude of the magistrate, which 
is one of the most sacred attributes of justice. These declarations of 
the sailors, my clients, therefore, are not a confession of the crime, nor 
is this the spirit of the law of Castile. To be convinced of this fact, let 
those declarations be read. It is not said, we have committed this crime, 
but only we were deceived. These declarations allude to the unlawful 
acts of others, such as the traffic, the introduction of slaves in this island ; 
nor did the will nor the inclination of the deponents take part in that 
traffic. Let any part of the declarations be cited to prove the founda- 
tion for such an assertion. 

The law requires, moreover, for the responsibility of the accused, a 
deliberate disposition to transgress. The actions of men have their 
origin, their object, and determined ends. To keep these out of view, 
would be equivalent to condemning the whole human family. All 
the circumstances by which the sailors found themselves surrounded 
when the negroes were already on board, and they had ascertained the 
concealed object of the voyage, exercised in regard to them real vio- 
lence, a force which they could not overcome ; and this force, this vio- 
lence, were the maritime latitude, the greater number they had to 
contend with, their miserable condition, the enormous distance, the 
utter absence of means of escape, or even to rise in rebellion against the 
captain, for they would have perished in the struggle. The law ab- 
stains from inflicting penalty upon the man who labors under the terri- 
ble weight of such circumstances; and this is the foundation of the ex- 
ception to the application of severe measures, according to the opinion 
of jurisconsults. 

It is conclusively inferred that they had no liberty of action, either 
moral or physical ; that the acts cannot be imputed to them under any 
aspect whatever; and that this most essential requisite being wanting, 
they are not amenable to law. 

_ Even though the declarations were to be misconstrued so far as to 
give them a meaning of which, as it has been demonstrated by the ac- 
quittal of the local authorities, they are not susceptible, they would be 
utterly wanting in efficacy, as they would be the declarations of accom- 
plices in the very crime, and such evidence is of no validity whatever 
in law. 

Everything, therefore, tends to convince and to set forth the innocence 
of the accused and the pressing necessity, because the rectitude with 
which the administration of justice ought to be conducted demands it, 
of decreeing the release of my clients, in order that they may be deliv- 
ered over to the consul of their nation, and be able, in their own 
country, to prosecute those who have so iniquitously deceived them. 
With this view of the case, the summary being obscure, inefficient, and 
without any merit whatever, the criminal proceedings without founda- 
tion, seeing that the commission of the crime for which the prosecution 



308 CASE OF THE BLACK WARRIOR, ETC. 

has been got up has not been proved, and reproducing, as I do, all that 
was favorable to the subject in B. 348, on account of the solid founda- 
tions it contains, I supplicate your highness that, taking into considera- 
tion my reply to the prosecution, as reproduced in all its force, you will 
acquit my clients of all crime and penalty, by decreeing that they shall 
be at once set at liberty, as if is proper and should be done according 
to justice, &c. 

JOSE PERES RAMOS. 

I. MANUEL COSTALES. 



Mr. Marcy to Mr. Robertson. 
[Extract.] 

Department of State, 

Washington, March 7, 1853. '" ', 
g IR . #*###*# 

The announcement that the American seamen in whose behalf you 
have so strenuously exerted yourself have been acquitted, affords much 
satisfaction. 

You will provide for their return to the United States in accordance 
with previous instructions, taking care that their necessary wants, as 
destitue American seamen, be supplied. 

I am, sir, &c, 

W. L. MARCY. 
W. H. Robertson, Esq., 

Acting United States Consul, Havana. 



CASE OF THE BLACK WARRIOR. 

Mr. Robertson to Mr. Marcy. 

[No. 42.} Consulate of the United States, 

March 14, 1854. 

Sir.: Captain Bullock, of the steamship Black Warrior, becoming im- 
patient, as he has a large number of officers and men on his hands at a 
verv heavy expense, and was ignorant of the real charges of complaint 
that justified the proceedings against him and his ship, made a memorial 
to the Governor and Captain General, praying that himself, his officers 
and crew, should be permitted to embark in the Crescent City, expected 
from New Orleans on her way to New York ; and at the same time to 
be furnished with a statement of the case, that he might report to his 
owners. Said memorial, at the captain's request, was enclosed in a note 
from me, calling his excellency's attention to it. Last evening I received 
a reply, of which the document herewith enclosed is a translation. 

How long these proceedings may be continued it is impossible to say. 

I have the honor to be, sir, with great respect, your very obedient 
servant. 

WM. H. ROBERTSON, Acting Consul. 

Hon. Wm. L. Marcy, 

Secretary of State of the United States. 



CASE OF THE BLACK WARRIOR, ETC 309 

[Translation.] 
[L. S.] 

EVER FAITHFUL ISLAND OF CUBA.— OFFICE OF THE GOVERNOR AND CAPTAIN GENERAL, POLITI- 
CAL SECRETARY'S OFFICE, SECTION FIFTH. 

The jurist to whom belongs the judicial investigation of the case of 
the steamer Black Warrior, has just reported to me as follows : 

" Most Excellent Sir : The assessor (legal adviser) has just dis- 
patched the process that the preceding petition refers to, advising your 
excellency in it that the same shall return into the hands of the ' fiscal,' 
to whom belongs, as the representative of the royal exchequer, to plead 
the rights of the same ; consequently, no decision has as yet been pro- 
nounced that is to be communicated to the captain of the steamer de- 
tained, and by him spontaneously abandoned ; so that the persons of 
the crew of said steamer, being in the enjoyment of their liberty, can 
make use of it as they may choose either to remain in or leave this 
country, your excellency's permission being first obtained. But in 
regard to the process, it is necessary to go through the opportune pro- 
ceedings before pronouncing the proper resolution, to the results of 
which must remain subjected the captain of the steamer ; giving to 
that end the necessary guarantee, as he should be made to understand, 
should your excellency so ordain it, referring afterwards this petition to 
the fiscal, with all the proceedings upon the matter." 

And, in conformity with his report, I transfer the same to your lord- 
ship for your information, and in reply to your communication of this 
date ; in the understanding that, as your lordship will perceive, the offi- 
cers and crew of said steamer are at liberty to transfer themselves 
where they please ; but not so Captain Bullock, for the reasons already 
expressed. 

God preserve your lordship many years. Havana, March 13, 1854, 

EL MARQUIS DE LA PEZUELA. 

To the Consul 

of the United States in this city. 



Mr. Robertson to Mr. Marcy. 

[Extract.] 

Consulate of the United States, Havana, 

March 21, 1854. 
g IR . ###*## 

Enclosed herewith you will find a copy, with translation, of an offi- 
cial letter from the collector of the customs to Mr. Charles Tyng, con- 
signee of the steamer " Black Warrior," restoring to the owners the 
said steamer and her cargo. The ship has been received under protest, 
and the fine will be paid under protest. She was taken possession of 
yesterday in the most filthy condition, and in the greatest disorder, and 
I am informed that many articles belonging to her are missing. All 
circumstances bearing upon the case will hereafter appear in the cap- 
tain's protest. She is now taking in her cargo, and intend to leave for 

New York on Friday next. 

###### 



dlU CASE OF THE BLACK WARRIOR, ETC 

[Translation.] 

Administration General of the Maritime Revenue of Havana. 

His excellency the superintendent general, delegate of the royal ex- 
chequer in this island, under date of the 16th instant, has been pleased 
to issue the following decree : 

" In view of the fiscal's opinion, having before me all the other pre- 
cedents of the case, and finally concurring in the spirit of benevolence 
which is evident in the decision of the superior directing board of the 
royal exchequer, I resolve to fix the fine of six thousand dollars, which 
is to be paid by the company owning the steamer Black Warrior, with- 
out any other disbursement on any account whatsoever, as from the 
said fine shall be deducted the expenses incurred hitherto and the dues 
that were defrauded from the royal exchequer" — 

Which I transmit to you for your information, that you may be pleased 
to make effective (hacer efectiva) the said fine, and dispose that the 
captain of the Black Warrior take charge of her and the cargo, all 
with the urgency that the case demands. 

God preserve you many years. Havana, March 18, 1854. 

JOAQUIN ROCA. 

Charles Tyng, Esq., 

Consig?iee of the American steamer " Black Warrior.'''' 



Mr. Sutherland to Mr. Marcy. 

New York, 54 Wall Street, 

March 28, 1854. 

Sir : In the statement of Messrs. Livingston, Crocheron & Co., 
agents of the New York and Alabama Steamship Company, relative 
to the seizure of the " Black Warrior,'* &c, which they had the honor 
to lay before you on the 11th of March inst., they referred to former 
unjust demands made by the authorities at Havana, upon the agents of 
said company there, for certain " tonnage dues," &c, in violation of cer- 
tain privileges which had been previously conceded and verbally 
promised, if not authoritatively ordained or decreed, tp the steamers of 
said company, being the same privileges conceded to, and enjoyed by, 
the steamers of the English Royal Mail Company, and those of the 
American " Law" line. 

The amount which the said agents at Havana were thus compelled 
to pay, and did pay, under protest, on or about the 17th of February, 
1853, was $3,372 50 ; since then, a demand has been made upon the 
said agents for two trips more, amounting to $2,197 76. 

Upon the first demand being made, Messrs. Tyng & Co., the said 
agents at Havana, made a memorial to the intendente, requesting that 
the matter might be referred to the home government at Madrid. In 
this memorial they not only complained of this demand of these tonnage 
dues, &c, under the circumstances, as unjust and dishonorable, but 
insisted on the claim of the steamers of the "New York and Alabama 
Steamship Company" to enjoy the same privileges as the steamers of 



CASE OF THE BLACK WARRIOR, ETC 311 

the " English Royal Mail Company," and those of the American " Law" 
line. This request to have the matter referred to the home govern- 
ment having been granted, Messrs. Tyng & Co. wrote to Mr. Barringer, 
who was then the American minister at Madrid, enclosing a copy of 
the memorial ; and explaining the case, asked his attention to it. To 
this letter no answer has been received. 

Upon the demand being made for the $2,197 76, for two other trips, 
which was about the 10th of December, 1853, Messrs. Tyng & Co. 
wrote Mr. Soule, our present minister at Madrid ; and, referring to the 
said memorial and their letter to Mr. Barringer, fully explained the 
case to him, and asked his attention to the matter. No reply has been 
received from Mr. Soule, nor is it known that the letter has been received 
by him. 

On the behalf and at the request of Messrs. Livingston, Crocheron & 
Co., I have the honor now to enclose, herewith, a copy of the letter of 
Messrs. Tyng & Co., to Mr. Soule, and to ask you, as the chief execu- 
tive officer of the government having charge of our "foreign affairs," 
to give the subject-matter of it that attention and action which it may 
and ought to have, not so much as an isolated case of Spanish agres- 
sion upon the rights and property of American citizens, as from the 
fact that it has been followed up by the late unjust seizure of the 
" Black Warrior" by the same Spanish officials. 

I have the honor to be, your obedient servant, 

JOS. SUTHERLAND. 

Hon. Wm. L. Marcy, 

Secretary of State, Sfc. 



Havana, December 10, 1853. 

The undersigned, agents of the American steamers " Black War- 
rior" and " Cahawba," which vessels ply regularly between New York 
and Mobile, stopping each voyage at this port, beg to call your atten- 
tion to the following facts : 

In the month of August, 1852, previous to the establishment of the 
line, we made a memorial to the intendente, asking that the steamers 
of this line might be placed upon the same footing and enjoy the same 
privileges as the steamers belonging to the English Ro}^alMail Company, 
and those of the American "Law" line, which run between New York 
and New Orleans. This request was granted, and the " Black War- 
rior," the first of the line, commenced making her trips in the month 
of September following, and has continued to call here, on her voyages 
out and home, twice per month, ever since. The privileges granted to 
the above named lines, and which were promised to this line also, are 
as follows : 

1st. They are exempted from the payment of certain port charges 
levied upon common merchant vessels coming to this port for the pur- 
pose of bringing or carrying away cargoes, such as light dues, mud-ma- 
chine dues, &c, &c; and, second, they are allowed the privilege of 
taking merchandise to the extent of three tons, without incurring the 
charge of tonnage dues paid by merchant vessels. 



312 CASE OF THE BLACK WARRIOR, ETC. 

The Black Warrior had made four voyages, calling at this port 
twice on each voyage, when, to our astonishment, the custom-house 
authorities sent us the bills, and demanded payment of the tonnage 
dues and other port charges for those four voyages, the same as though 
she had been a common merchant ship, and no promise had been made 
to consider her as otherwise. These bills for tonnage, dues, &c, 
amounted in the aggregate to near five thousand dollars, ($5,000.) In 
answer to our question why they demanded these charges, we received 
a reply that a royal order had been received from Madrid, in answer 
to a memorial by the house of Villodo, Wardroff & Co., of this place, 
asking that the English steamer " Tamaulipas" might be placed upon 
the same footing as the two first mentioned lines of steamers. This 
royal order refused the request, on the ground that no merchant vessel 
should enjoy the privileges granted to the mail steamers, and the cus- 
tom-house authorities, choosing to consider the Black Warrior as a 
merchant vessel, not only rescinded the privileges they had before 
granted, but demanded payment of the past dues which they alleged 
she had incurred. We objected to paying the amount and made a 
memorial to the intendente, requesting that the matter might be referred 
to the home government, at Madrid. This request was granted, and 
the memorial, (of which we herewith enclose a copy,) was, after much 
delay, forwarded on the 1st of March last. We also wrote to Mr. Bar- 
ringer, who was at that time the American minister, explaining the 
case, and requesting his attention to it, but, having received no reply 
to our letter, are uncertain whether he received it or not. We beg 
leave to present to you the following reasons why these steamers should 
be placed upon the same footing with those of the American " Law'* 
line, and not with the English steamer " Tamaulipas :" 

The steamers "Black Warrior," of 1,700 tons, and the " Cahawba," 
of 1,850 tons, American measurement, are large side-wheel steamers, 
and are commanded by officers of the United States navy. They 
merely stop here for from four to six hours on their trips to and from 
New York and Mobile. They make these stops merely to land mails 
and passengers, and to take in coals and other necessary supplies ; 
they neither land nor receive cargo. Like the " Law" line of steamers, 
the only use they have made of the three tons granted, has been to 
take samples of merchandise, and other small packages, for the accom- 
modation of the commerce of the place. Being side-wheel boats, and 
using sails only as auxiliaries, they are obliged to steam during the 
whole passage. Moreover, as a large portion of their holds is taken 
up by the boilers and other necessary machinery, their carrying capa- 
city is very small in proportion to their tonnage. With the steamer 
" Tamaulipas" the case is very different. The " Tamaulipas" is 
a propeller, built in England, with a view to carrying merchandise 
principally. She is a sailing-vessel, and only uses her propeller as an 
auxiliary when the winds are unfavorable. She measures very small, 
but her carrying capacity is very large in proportion. She runs from 
Liverpool to Vera Cruz, and from there here, bringing cargo and pas- 
sengers. She lies in port for from three to four days, and receives and 
discharges cargo, the same as any merchant vessel, and there is no just 
reason why she should not be considered as such. 



CASE OF THE BLACK WARRIOR, ETC 313 

We contend that it is an injustice to represent the Black Warrior 
and the Cahawba to* be of the same class and subject to the same 
duties as the Tamaulipas, being, as they are, of an entirely different 
build and intended for an entirely different purpose. 

We claim that they are of the same class, subject to the same duties 
and other port charges, and entitled to the same privileges as the " Law" 
line of steamers before mentioned. More than this, we consider it not 
only an unjust, but a dishonorable act, on the part of the authorities, 
that, after having given their consent and admitted these steamers 
eight different times upon precisely the same footing as the " Law" 
line, and that consent being one of the inducements for these steamers 
to stop in this port, then not only to withdraw the permission, but also 
to demand payment for those past voyages — voyages which would not 
have been made had that permission not been granted. Had the in- 
tendente informed us, in answer to our application before the line was 
established, that these steamers could not be granted the privileges 
accorded to the "Law" line, then arrangements would have been 
made either for them not to stop here at all, or else to load full car- 
goes as an offset to those expenses; but having given the permis- 
sion, we consider the government bound both legally and honorably to 
make good the promise. Within the past few days we have again 
been called upon to pay the amount of these tonnage and other dues. 
We have called upon the custom-house officers, to know why the de- 
mand is made again, after having been referred last spring to the home 
government at Madrid. We have been informed by them, that no an- 
swer has as yet been received to the memorial then sent ; but that it is 
an order from the intendente to the collector of the port, that the amount 
shall be paid. If these charges are persisted in, it will be necessary 
for the owners to order these steamers to stop here no more, as the 
expense thus incurred would be ruinous. 

As American citizens ourselves, and as the agents and representa- 
tives of large American interests in this port, we would request you, 
as the American minister plenipotentiary to the court of Spain, to have 
this matter fairly represented to the proper authorities at. Madrid who 
have charge of those affairs, and see that we, as agents of the owners 
of these steamers, are protected in our just end legal rights. We would 
wish you to represent to them that the steamers are not only of great 
importance to the commerce of the place, as is indeed the case, but 
also to the government itself, in the way of forwarding dispatches, &c, 
as has always been done by them without any charge whatever. 

We would feel greatly obliged if you would acknowledge the receipt 
of this letter, and inform us, so far as may be in your power, of the 
prospects of a speedy settlement of the affair ; and beg leave to sub- 
scribe ourselves, 

Most respectfully, your obedient servants, 

CHARLES TYNG & CO. 

Hon. Piere Soule, 

Minister Plenipotentiary of the United States at Madrid. 



314 CASE OF THE BLACK WARRIOR, ETC 

[Translation.] t 

Rules and instructions for the custom-house service of the ports of 
entry in the island of Cuba, ordered to be put in force by royal 
order of the 13th of February, 1847. Printed in Havana, at the 
printing office of the government and royal treasury, for her Majesty, 
on the same year of 1847. 

[Articles concerning what took place with regard to the " Black Warrior."] 

Art. 1. " The operations of the custom-house shall commence from 
the moment that vessels come into port." (After directing the com- 
mandant of carabiniers to be present at the sanitary visit, and to cause 
the vessel to be watched until she is admitted to free practice, it con- 
tinues :) " The vessel being admitted to free practice, the aforesaid 
v officer shall go on board and receive from her captain the manifest of 
the cargo she brings. In doing this, he shall make a note, at the bot- 
tom of said document, of the hour when the same was delivered to 
him, of the lines of writing it contains, stating which have not been 
corrected, or which have been, and the circumstance of the vessel 
having anchored, it being necessary for him to sign this note, with the 
captain and the interpreter, in case of said captain being a foreigner. 
After this, he shall deliver to the same captain a printed copy, in three 
languages, according to examplar No. 1, of the obligations with which 
he is bound to comply, and the penalties he would incur by their in- 
fraction ; and having done this, he shall take care," &c, &c. 

Art. 4. The manifest being presented with the formalities enume- 
rated, the commandant of carabiniers, or whoever may represent him, 
shall forward the same to the collector of customs, in order that he 
may hand it to the interpreter, &c, &c. 

Art. 5. " During the space of twelve hours, counting from the time 
that the vessel comes to anchor, (it being understood, for this purpose, 
the hours intervening between six in the morning and seven in the 
evening, every day in the year, irrespective of holydays,) the^captain 
shall be at liberty to make additions in his manifest, whether for omis- 
sions, irregularities, or errors he may have committed in the same, or 
in consequence of not having presented it with the formalities required 
by the foregoing articles." 

Art. 6. " The alterations which the captain may have to make, con- 
formably with the privilege granted by the preceding article, shall be 
comprised in an appendix, which he shall present to the collector, 
noting down the hour of its delivery, and both signing the same, if it 
be office hours ; if not, he shall present it to the chief of carabiniers 
that may be on duty at the mole, who, without the least delay, and 
under the strictest responsibility, shall transmit the same to the col- 
lector, with a memorandum, signed by said chief himself and the cap- 
tain, of the hour when it was delivered." 

Chapter V. — Tonnage and arrivals. 

Art. 54. " National or foreign vessels entering the ports of the island 
to trade, with whatever kind of cargo, shall pay, besides consular and 



CASE OF THE BLACK WARRIOR, ETC 315 

...... J 

municipal duties, the tonnage duties specified by the tariff, according 
to the results of the guaging effected on the occasion of their first 
voyage, for all vessels, whether national or foreign." 

Art. 56. "If, after having come in ballast, the vessels sail again 
without a cargo, they shall be exempt from the payment of tonnage 
duties; but this duty shall be exacted from them if they take the 
whole or part of their cargo in produce of the country, or in articles 
of any other kind or derivation, even when they are not worth the 
duties. In the same manner they shall pay, under all circumstances, 
the local duties which are levied in each port." 

Art. 57. "Nor shall those vessels pay tonnage duties which arrive 
at a port in quest of water or provisions, or to repair damages ; but if 
such vessels leave the whole or part of their cargo, or ship produce of 
the country, or articles of any other derivation, they shall pay in full 
the duty aforementioned." 

Chapter XL — Mercantile depot. 

Art. 119. "Articles, produce, or effects, intended for deposite, shall 
be divided into two classes. Those of the first class shall only enjoy 
this benefit during the term of one year, not to be prolonged ; and those 
of the second class for two years, not to be prolonged likewise." 

Art. 123. " The articles composing the second class are the follow- 
ing : Flax, hemp, cotton, wool, silk, furs, horse-hair in its natural state 
or manufactured, and every species of texture, &c" 

Chapter XII. — Fines, double duties, and seizures. 

Art. 160. " The value affixed to effects, produce or articles of trade, 
shall be the criterion for regulating the fines and double duties, which 
are not designated in these instructions by a fixed sum." 

Art. 162. "At the expiration of the twelve hours specified in article 
5th for the rectification or addition of the manifest, all bulks that have 
not been set down in it shall be seized, a fine being likewise imposed 
upon the captain of as much more as the value of the same ; provided, 
that the amount of duties which should have been paid for the contents of 
the bulk, or bulks seized, does not exceed four hundred dollars, because 
if it should exceed that amount, and the articles belong or be consigned 
to the owner, captain, or supercargo of the vessel, the fine shall not take 
effect, and, in its place, the vessel shall be seized, together with her 
freight and all belonging to her." 

Art. 175. "If, upon the visit of the inspector, which must be made 
to all vessels before the papers with which they have to sail are de- 
livered to them, there should be found any excess in the cargo, this 
shall be seized, and a fine imposed upon the captain equal to the value 
of said excess." 

Chapter XIII. — General regulations. 

Art. 190. " The captain of every vessel, national or foreign, which 
may enter any of the ports of entry of the island, on her passage out, 



316 CASE OF THE BLACK WARRIOR, ETC 

whether with cargo or in ballast, by stress of weather or in transit, shall 
present her manifest or register, in the manner and with the formalities 
prescribed in these instructions, and shall be subjected to the fines and 
penalties imposed in the same, for any violation of the regulations 
therein contained." 

Art. 193. "From the moment that a vessel in cargo enters a port, 
until she has discharged the same, or, if either in transit or driven by 
stress of weather, until she sails again, and from the moment that a 
vessel in ballast takes in cargo, until her register is closed and she gets 
under way, there shall be a carabinier, at the utmost two, on board of 
her, for the purpose of performing the duties allotted to such which are 
laid down in these instructions, or in the regulations of said body. If 
this carabinier should be relieved for the convenience of the service, or 
for other causes, he shall deliver over to the person who may replace 
him, the memorandum book of the loading and unloading of the vessel, 
in the presence of one of his immediate superiors, who shall revise the 
same, in order that, in case of any difference occurring, the responsi- 
bility may be thrown upon whom it belongs." 

Art. 197. " The^collector of customs shall attend to the manifests 
and registers of foreign or national vessels which may enter in ballast, 
in distress, or in transit, on the same terms as are established with re- 
gard to those that bring imported cargoes." 

Art. 203. "None of the provisions contained in these instructions 
shall be interpreted in a .different sense from their literal context. When 
any doubt or difficulty shall occur in regard to their application, the 
collectors shall communicate the same for advice to the respective inten- 
dent, who will submit them, with his opinion, to the superintendency ; 
and the latter shall decide,- by previous agreement with the superior 
tribunal having control of the finances, the matter being referred to the 
supreme government for its approbation or correction." 



[Translation.] 

Exemplar No. 1. — Rules for the guidance of the masters and super- 
cargoes of vessels, Spanish or foreigners, engaged in the importation 
trade in the ports of entry of the island of Cuba. 

1. Masters or supercargoes of transit vessels, entering any of the 
ports of entry of this island, are obliged, as soon as they have dropped 
anchor, to present to the officer of the carabiniers who shall come on 
board, a manifest containing their names, that of the ship, the number 
of Spanish tons she measures, what her cargo consists of, the name 
of the place she sailed from, the number of bales of goods or bulks, 
with the designation of their respective marks, numbers, and names of 
the persons to whom they are consigned. 

If all or part of the cargo should happen to consist of salted beef, 
salt, cocoa, or other articles put up in bulk, these shall be manifested 
by weight or Castilian measure, specifying, also, the articles of mess, 
naval and military stores, and the quantity of hard coals they bring for 
their own consumption, if the vessel be a steamer. 



CASE OF THE BLACK WARRIOR, ETC 317 

2. Masters and supercargoes of vessels putting into said ports by 
stress of weather, are obliged to present the manifest of their cargo, 
with the same specification as if it were intended for traffic and to be 
disposed of in the island. 

3. Masters and super*-argoes of vessels entering in ballast are subject 
to the same obligation. » 

4. Those masters who may have been compelled, by bad weather, 
or by other fortuitous circumstances, to throw overboard part of their 
cargo, shall likewise set it down in their manifest, specifying, though it 
were by wholesale, the quantities, bulks, and kinds or species, being 
obliged to present their declarations to the custom-house, as well as the 
log-book, in corroboration of their assertions. 

5. Those vessels proceeding from Spanish ports with their registers 
dispatched by the respective custom-houses, are only obliged to mani- 
fest the effects they bring which are not inserted in the register, articles 
of mess, and the stores already mentioned. 

6. If the master or supercargo fail to present the manifest at the time 
prefixed, he shall incur a fine of five hundred dollars. 

7. Whosoever shall fail to declare the exact number of Spanish tons 
his vessel measures, shall be obliged to pay the costs which may'be 
incurred in guaging the same, provided that the excess of tonnage she 
is found to measure does exceed ten per cent, of what is set down in 
the manifest. 

8. When neither the master nor the supercargo is able to draw up 
the manifest, that duty shall revert to the consignee of the vessel, or to 
any of his dependents who may be empowered to that effect. 

9. During the twelve hours following that of the delivery of the man- 
ifest, reckoned from six in the morning till seven in the evening, he 
who presented the same shall be at liberty to make such alterations in 
it as he may deem proper, by waiting personally upon the collector if 
within office hours, or, in the contrary case, upun the chief of the cara- 
biniers, who is on duty at the custom-house. 

10. If, at the expiration of the twelve hours designated by the fore- 
going regulation, there shall be found on board the vessel any bulks or 
other effects which have been omitted in the manifest, the same shall 
be seized, and the master or supercargo mulcted in as much more the 
amount, of their value, provided that the duties which ought to have 
been paid for the contents of the bulk or bulks seized do not exceed 
$400 ; for if they do exceed that sum, and the effects belong to or be 
consigned to the owner, master, or supercargo of the vessel, the fine 
shall not be levied, and, in its place, the aforesaid vessel, with her 
freights and all that belong to her, shall be confiscated. 

11. It shall not be allowed to disembark anything without the per- 
mission of the collector, and the knowledge of the officer of the cara- 
biniers who may be on duty at the mole. For the simple act of dis- 
embarking anything, although they may be articles of little importance 
or free of duty, the master or supercargo shall pay a fine of $1,000 ; 
and all the effects seized, as well as the boat or launch which conveyed 
them, shall be confiscated, provided that the amount of duties said ar- 
ticles would have had to pay does not exceed $200 ; but if it exceed 
that sum, the fine shall be omitted and the ship confiscated. 



318 CASE OF THE BLACK WARRIOR, ETC. 

] 2. Nor shall any effects be allowed to be shifted from one ship to 
another within the bay, either in small or large quantities, without 
those requisites mentioned in the foregoing rule ; the masters or super- 
cargoes of both vessels being, in case of contravention, subject to the 
penalty specified in the rule aforesaid. 

13. If any vessel discharge goods, in either small or large quantities, 
in a port which is not a port of entry, the vessel and all that appertains 
to her shall incur the penalty of confiscation. 

14. If, after having discharged a vessel, there be found wanting any 
of the bulks set down in the manifest, it shall be understood that the 
master or supercargo has committed a fraud against the treasury, by 
fining them in the amount of $200 for each of the bulks missing. 

15. If it should be proved upon the visit of the inspector, which 
must be made to every 'vessel before the papers with which she has to 
sail are delivered to her, that her cargo exceeds the entry, the same 
shall be seized, and a fine three times the value of said excess be im- 
posed upon the master. 

16. The seizures which shall be made of articles, produce, or effects 
attempted to be shipped in a fraudulent manner, shall be subject to the 
same confiscation and fine which are mentioned in the foregoing article. 

17. If masters or supercargoes should not have the means to pay the 
amount of their respective penalties, there shall be used for the pay- 
ment of such, and the costs, the vessels which they command, unless 
their consignees voluntarily come forward to pay the same. 

A true copy. 



[Translation.] 

Observations. 

In order to avoid the delays which are occasioned to steamers that 
are only occupied in conveying passengers and the mails in the trips 
they make periodically from one port of the United States of America 
to the other, touching at Havana — because such delay is incompatible 
with their regulations, which only allow them to remain a few hours in 
said port of Havana, (three or four at the utmost) — a custom has been 
established of asking the consignees, in advance of the entrance of said 
steamers, for the register, supposing them in ballast, whenever they do 
not bring cargo for this port, nor come here to take such cargo. Thus 
it has always been done ; because, although it is provided in article 
1 of the instructions "that the operations of the custom-houses shall 
commence from the moment that the vessels enter port," that then, or 
when they are admitted to free practice, the commandant of the cara- 
biniers is to receive from the captain the manifest of the cargo, taking 
note of the hour, in order that the aforesaid captain may return to sign, 
it was understood that these formalities were adopted with reference 
to national or foreign vessels entering the ports of the island to trade 
with whatever kind of cargo — an intention which is set forth in article 
54, and which coincides with the very remarkable circumstance that 



CASE OF THE BLACK WARRIOR, ETC 319 

in 1847, when the instructions were drawn up, if we are not mistaken, 
these lines of North American steamers were not established. How- 
ever this may be, it is a fact that the custom-house has concurred in 
the custom alluded to. 

In her last trip the " Black Warrior" brought from Mobile some bales 
of cotton — an article which is not of trade, which never enters among 
the staples of consumption in Havana, and for which, therefore, there 
are no duties assigned by the tariff. Nor do goods which come here in 
transit, in a vessel that is taking said goods to another port, pay such 
duties ; consequently it is not to be presumed that the captain of the 
Wlack Warrior had intended to commit a fraud, v 

The aforesaid steamer entered this port at seven o'clock in the 
morning. Supposing the captain to have represented her in ballast in 
the manifest, it must be taken into consideration that the same instruc- 
tions, in article fifth, state positively that during the space of twelve 
hours the captain shall be at liberty to make additions in his manifest, 
either on account of omissions, irregularities, or errors he may have 
committed, or in consequence of not having presented the same with 
the required formalities. In order to allow of no doubt, this same arti- 
cle fifty says, that these twelve hours shall be comprised from the mo- 
ment that the ship comes to anchor, and that they must be understood 
as the hours intervening between six in the morning and seven in the 
evening ; therefore there can be no doubt that in asking for the bill of 
clearance the captain had the unquestionable right of making additions 
in his manifest, and that this privilege could not and should not have f 
been denied to the consignee, Don Carlos Tyng, when, on being in- 
formed of the difficulties that had interposed, he asked for the same of 
the collector of customs, who founded his refusal upon the fact that 
this right had been forfeited when Don Felipe Nunez, who signed the 
request in behalf of the consignees, solicited the visit of clearance. 
There is not one article in the instructions which establishes such a 
loss of the right of making additions to the manifest, and there must be 
borne in mind, above all, the custom of which we have before made 
mention. 

Let it be remembered that the " Black Warrior's" cargo being in 
transit, she is not subject to tonnage duties, and still less to importa- * 
tion duties; she would only have to pay port duty, (derecho de ponton,) 
which would amount to about $150. Hence, it must be inferred that 
under no circumstances did these duties or supposed fraud amount to 
what occasions the fines, and double as much, which are imposed when 
the fraud is committed against the royal treasury, and which constitute 
the rule according to article 160 ; because that port duty is merely ar- 
bitrary, created by the Real Junta de Fomento, and not by the Cajas 
Reales, or general expenses of the nation. Between the Junta de Fo- 
mento and the royal treasury, there is the difference of a corporation 
purely local, which attends to the encouragement of agriculture and 
the commerce of the province solely, and the government, which in a 
monarchy, or central power, is at the head of the nation. Besides these 
remarks, the consideration which is suggested by article 162 appears 
conclusive; it says: "At the expiration of the twelve hours designated 
in article 5," etc.; which words, " at the expiration," do not admit of 



320 CASE OF THE BLACK WARRIOR, ETC 

the least doubt, nor allow of an interpretation calculated to subject 
those bulks which had not been included in the manifest to confiscation, 
and to impose upon the captain a fine of as much more the amount of 
their value, or the confiscation of the vessel, freight, and all belonging 
to her, before that period of time had expired. There is no doubt but 
that the act of taking possession of the " Black Warrior" was contrary 
to the instructions, seeing that it began to be carried out four or five 
hours after her entrance into port, and that to refuse permission to make 
additions in the manifest, by inserting in it the cargo which she had 
brought in transit, when the novelty of interrupting the practice or cus- 
tom followed until then became palpable, was still more illegal. 

In normal cases, and with regard to vessels entering to trade, the 
provisions of the instructions could not be interpreted in a different 
sense from their literal context, seeing that article 203 forbids it ; the 
confiscation of a cargo brought in transit by a steamer that only comes 
to this port to leave and to take passengers and the mails, even though 
setting aside the custom aforesaid, ought to be considered as much less 
reasonable. The collector of customs should have explained, in his 
first communication to the superior authorities, that the twelve hours 
had npi elapsed before ' he ordered the vessel to be seized for the pur- 
pose of discharging and confiscating the bales of cotton. This sup- 
pressed fact, although it is not denied, is, fortunately for the master 
and the owners of the cargo, too well authenticated ; because the 
steamer having entered at seven o'clock in the morning, the aforesaid 
twelve hours lasted until the same hour in the evening ; nevertheless, 
the captain made his reclamation at midday through the consular 
agent. Subsequently the consignee called upon the collector, and it was 
only three o'clock in the evening when said consignee, Don Carlos 
Tyng, returned to the custom-house, and, in the presence of two indi- 
viduals, requested of the collector to be allowed to exercise the right 
granted by the fifth article of the instructions. Tyng showed that he 
had this right in his first memorial, and it was neither denied nor con- 
tradicted; moreover, from the very day of the ship's entrance, it was 
undertaken to discharge her, and the. act was only suspended when the 
captain abandoned the vessel and left her with all the crew. 



/ 



OPENING OF THE MAILS OF THE UNITED STATES. 
Mr. Sharkey to the Secretary of State. 

[Extract.] 

[No. 19.] Consulate of the United States, Havana, 

November 8, 1852. 
Sir: 

It seems to be difficult to induce either the authorities or people here 
to believe that our government does not lend its countenance to expe- 
ditions against this island, although I have again and again assured 
. them to the contrary. I must inform you that we are not allowed to 



CASE OF THE BLACK WARRIOR, ETC 321 

receive newspapers from the United Stntes through the post office, nor 
is nny one allowed to bring them on the shore, two or three papers 
being excepted, as I understand, and it may be trnit other communica- 
tions are suppressed. This condition, to say the least, is humiliating 
especially to me. 



Mr. Sharkey to Mr. Everett. 

[No. 25.] Consulate cf the United States, Havana, 

February 21, 1853. 
Sir: In the absence of a postal arrangement with this island, it has 
been the custom to dep^site letters intended for the United States in a 
letter bag kept for that purpose by the consignee of the mail steamers. 
This bag is closed at the proper time, and sealed, and it is then taken by 
a clerk of the house and delivered on board the ship. I have never 
heard any objection made to this custom, nor have the authorities here, 
as far as I know, ever heretofore claimed any authority over it. On 
the 19th instant, however, the mail bag intended for the " Empire City," 
after it had been regularly closed, was seized as it was being conveyed 
from the house of the consignee, taken to an office, the seal broken, 
and the contents examined ; alter which it was returned to the indi- 
vidual who had charge of it,- and by him taken on board the ship. On 
yesterday a like course was pursued with the mail bag intended for 
the "Crescent City." The seizure and examination were made, as I 
am informed, by the chief of police, but of course under the order of 
the Captain General. It is said that no letters were taken from the 
bags; I lelt it to be my duty to remonstrate against this course as in- 
decorous towards my government, and have the honor to enclose you 
a copy of my communication to the Captain General on that subject. 
I believe a like course was attempted with the British mails a lew 
years ago, but it was resisted and abandoned. The British mails, how- 
ever, are made up at the consul's office. You will see how easily our 
correspondence, official as well as private, may be obstructed. I was 
not present at these examinations, but give you the inibrmation on re- 
liable authority. There is evidently some alarm existing here, but from 
whit cause 1 know not. 

I have the honor to be, with great respect, your obedient servant, 

W. L. SHARKEY, 

lion. Edward Everett, 

Secretary (j Stale <>J the United Slates. 



Consulate cf the United States, Havana, 

FSruary, 21, 1853. 

Most Excellent Sir: Inibrmation has reached me that on the 19th 

and 20th instant, the mail bags intended for the United States mail 

steamers Empire City and Crescent City were seized by the public 

authorities after they had been regularly closed and sealed, as they 

21 



322 CASE OF THE BLACK WARRIOR, ETC 

were being carried from the house of the consignees and agents ot' 
those ships (Messrs. Drake & Co.) to the wharf, the seals broken, and 
the contents of the bags examined. It is not my province to discuss 
this question as one of national concern , it will be referred to the gov- 
ernment at Washington, where, I doubt not, it will be duly considered. 
But I must nevertheless avail myself of the occasion to express my 
deep regret at the occurrence, and respectfully, but decidedly, to re- 
monstrate against it as discourteous towards my government, for the 
following reasons : The United States mail steamers which touch at 
this port have been running under the employment of the government 
for more than five years. During that time they have constantly 
brought regular mails from the United States, and have deposited them 
in the post office here, and have thus rendered essential service to this 
government, and have also contributed to the interests of commerce, to 
the convenience of the inhabitants, and to the interests of the Post 
Office Department of the island. During the same period, in the ab- 
sence of a postal arrangement, it has been the uniform custom to deposite 
letters lor the United States in a letter bag kept for that purpose by the 
consignees of the ships, who at the appointed time, closed and sealed 
it, and delivered it on board the ship, where it was received as the mail 
of the United States. If I am not misinformed, the officials of this 
government have, very often availed themselves of this facility. To 
this custom, although well known, no objection has heretofore been 
made or restriction imposed. On the contrary, it has been tacitly ap- 
proved and sanctioned, and had thus assumed the character of a cus- 
tomary regulation. 

The sudden interruption in a matter of comity so beneficial, and 
which has so long existed without any intimation of an intended change, 
may well be regarded as ground of surprise. The government of the 
United States has had no intimation whatever that this custom was not 
altogether agreeable, or I am sure it would have been abandoned. 
Our Post Office Department must be supposed to have given its ap- 
proval to this mode of making up the mails here, under the supposition 
that it was entirely approved here, and it has therefore incurred the 
responsibility of delivering all such letters as might, be mailed here ; 
and it is to be regretted that it was thought necessary to depart from 
the customary mode, as the government of the United States 1ms in 
the most unrestricted manner given the full benefit of its mail arrange- 
ment to this government, and has, moreover, been steadfast in its friend- 
ship towards the government of her Catholic Majesty, and more espe- 
cially towards this island. 

I have the honor to be, with all due respect, your obedient servant, 

W. L. SHARKEY, 

Consul of the United States. 

His Excellency Senor D. Valentin CaJyedo. 

Governor arid Captain General, t$c, c^t-., &fc. 



CASE OF THE BLACK WARRIOR, ETC 323 

Mr. Sharkey to the Secretary of State. 

[Extract.] 

[No. 27.] Consulate of the United States, Havana, 

March 12, 1853. 
Sir : In my dispatch No. 25 of the 21st ultimo, I had the honor to 
communicate the facts in reference to the opening of the mails of the 
United States by the authorities of this city, and also to forward a copy 
of my communication to the Captain General on that subject. I have 
now the honor to forward his reply, and also to state that no other 

mails have since been subjected to examination. 

****** 

I have the honor, &c, 

W. L. SHARKEY. 

Hon. Secretary of State of lite United States. 



[Translation.] 

[l. s.] Political Secretary's Office, First Section, 

I have received the communication that your lordship addressed me 
under date of the 21st ultimo, in consequence of the bags containing 
the mails made up at the commercial house of Drake & Co., and 
destined for the United States mail steamers, having been examined by 
the chief of the police. 

Independently of your lordship's (incompetencia) want of authority 
in the matter which your lordship acknowledges, I must state to you 
that the said search having been effected within Spanish territory, and 
at a time especially when they were in possession of private persons, 
not clothed with any official character, in no manner have the friendly 
relations between both governments, nor the deference due to their 
agents, been affected by that act. 

Whether the bags were sealed or not, it is evident that on their cross- 
ing the line of the custom-house guards established on the coast, and 
consequently on the wharves of this city, a mere guard would have had 
sufficient authority to cause them to be opened ; and I even add that 
he would have been obliged to do it, for the purpose of ascertaining if 
there were among their contents matters on the exportation of which 
the royal treasury was entitled to duties. And if there can be no doubt 
in this, much less will there be for acknowledging the same powers in 
a functionary of infinitely higher station, and who, as the chief of po- 
lice aforesaid, independent of this office, holds high rank in the service 
of the State. Your lordship is well aware of the exceeding!}' temperate 
manner in which the acts were effected — that the greatest legality pre- 
sided in them ; and finally, that nothing was done but to look", in a few 
moments, over the addresses of the letters, after adopting the proper 
precautions to avoid that malice or ignorance should give them after- 
wards an appearance of violence or irregularity. 

Your lordship is no less aware of the good disposition on the part of 



324 CASE OF THE ELACK WARRIOR, ETC 

my authority to attend to your wishes, even in unofficial matters, of 
which are authentic evidence certain recent acts which I do not sup- 
pose your lordship may have forgotten. On this account I am the 
more surprised at your lordship's entertaining, for an instant, a doubt 
of my good dispositions, and of the especial care with Which I endeavor 
to avoid all that may offend the sincere and cordial friendship of the 
respectable American government. 

God preserve you many years. Havana, March 2. 1853. 

VALENTIN CANEDO. 

To the Consul of the United States. 



Mr. R-jlertson to Mr. Marcy. 

Consulate of the United States, Havana, 

August 29, 1853. 
Sir: Information has just been brought to me that a nwal order has 
b?en received here instructing the Captain General to have all the mails 
for the United States made up at ihe Spanish post office, and not to 
allow the present practice for the future. I am also informed that the 
British mails are exempted from the order — they are made up at the 
British consulate. I give you this information as a fact not to be 
doubted. 

^1 have the honor, &c, 

W. H. ROBERTSON. 
Wm. L. Marcy, 

Secretary of Slate, Washington. 



Mr. Robertson to Mr. Marcy. 

Consulate of the United States, Havana, 

August 29, 1853. 

Sir: The Spanish post office in this city has been tor some time 
past in the habit of cutting open letters coming Irom the United States, 
before proceeding to give them out. It is understood that it is done by 
order of the Captain General, and that their object is to see if the con- 
tents is printed matter ; in which case, (it is stated,) the party to whom 
it is addressed is called to open it in the presence of some officer of the 
government. Several letters addressed to Hon. Judge Clayton, United 
States consul at Havana, and to myself, as consul, have been cut open. 
As such acts on the part of the authorities here are very discourteous, 
and imply suspicion against this consulate, I have deemed it my duty 
to remonstrate with the Captain General. The annexed is a copy of 
my communication to his excellenc} r . 

Hoping that my course will meet your approval, I have the honor, 
&c.j &c, 

W. H. ROBERTSON. 

Wm- L. Marcy, 

Secretary of State. 



CASE OF THE BLACK WARRIOR, ETC 325 

Mr. Robertson to the Cjptuin General. 

Consulate of the United States, Havana, 

August 29, 1853. 

Most Excellent Sir : I regret that I have been disappointed in 
four different attempts to pay my respects to your excellency, the object 
of which was to remonstrate with your excellency against the repeated 
indignities practised in your post office towards the consulate of* the 
United States, in the cutting open of sundry letters directed to the Hon. 
Judge Clayton, United States consul at Havana, and others directed to 
the undersigned as consul. Satisfied in my own mind that such an in- 
dignity (implying suspicion of this office) cannot meet your excellency's 
sanction or approbation I communicate the fact to you, in the full confi- 
dence and hope that it will not be repeated. 

I have the honor to be. &c, &c, your excellenc3''s, &c, 

W. H. ROBERTSON. 

His Excellency Senor Don Y t alentin Canedo, 

Governor and Captain General of Cuba. 



Mr. Robertson to Mr. Marcy. 

[Extract.] 

[No. 55.] Consulate of the United States, Havana, 

September 13, 1853. 
Sir: Referring to 'my communication of the 29th ultimo, No. 52, 
and the document therewith enclosed, I now have the honor to transmit 
to you a copy of the Captain General's reply to my letter. His excel- 
lency gives in detail the reasons that have induced the government to 
take the measures complained against by me, but assured me that he 
had given orders to the postmaster of Havana not to effect any exami- 
nation of the correspondence addressed to this consulate. However, 
the United States mail steamer El Dorado arrived here on the 6th 
instant, from New York, bringing among other letters for me, or to 
my care, a large package addressed " United States consul, Havana," 
from your department, bearing the seal thereof. This package was 
cut. I immediately called on the Captain General and showed him 
the package. Without replying, he rang his bell violently and called 
his political secretary, of whom his excellency inquired if he had 
communicated to the postmaster his orders in regard to the correspond- 
ence of the American consulate. The secretary said lie had. The Cap- 
tain General desired him to reiterate his orders, and see that the thing 
did not happen again ; then turning to me, he expressed his regret at 
the occurrence, and assured me that it should not be repeated. I there- 
fore accepted his excellency's assurances, and thanked him for his 
promptness. 

I have the honor, &c., 

W. H. ROBERTSON, 

Acting Consul. 



326 CASE OF THE BLACK WARRIOR, ETC- 

Mr. Robertson to Mr. Marcy. 

[Extract.] 

Consulate of the United States, Havana, 

October 14, 1853. 
Sir: * #**'.## 

As my communication of the 13th ultimo, No. 55, must have reached 
you long before this time it is needless for me to say more on the sub- 
ject, except that since the day of my interview with the Captain Gen- 
eral mentioned in that letter I have had no reason for complaint on that 
account. 

I have the honor, &c, 

W. H. ROBERTSON, Acting Consul. 
W. L. Marcy, 

Secretary of State. 



Mr. Marcy to Mr. Pierce. 

Department of State, 
Washington, February 1, 1854. 

Sir : You will receive, prior to the sailing of the next steamer for 
Havana, a bag directed to your care, containing public dispatches for 
the United States consul at Havana. This bag will be closed in this 
department, and is not to be opened until its delivery to the United 
States consul in Havana. 

On the receipt of this bag you will intrust it to some discreet person 
on board the steamer, who will deliver it to the consul in person. The 
commander of the steamer would, doubtless, be quite willing to take 
it in charge. 

You are specially instructed that neither this bag nor any others that 
may be hereafter sent to the United States consul in Havana are to be 
opened in New York ; nor is any matter whatever to be conveyed in it 
except what is transmitted from this department. 

The enclosed dispatch, addressed to the United States consul at 
Havana, containing the keys of the mail-bag, I will thank you to send 
by some individual, whom, you will request to place it in the hands of 
the consul. 

I am, &c, W. L. MARCY. 

J. Franklin Pierce, Esq., 

JJ. S. Dispatch Agent, New York. 



A 



CASE OF THE CONTOY PRISONERS. 
Mr. Campbell to Mr. Clayton. 

[Extract.] 

Consulate of the United States, Havana, 

May 19, 1850. 

Sir: On the arrival of the steamer Ohio the Captain General or- 
dered that she should not be permitted to occupy her usual anchorage, 



CASE OF THE BLACK WARRIOR, ETC 327 

but ordered her anchored at the mouth of the harbor, and that none of 
her passengers for Chagres be permitted to land. The captain thought 
the anchorage unsafe, and protested against it without avail, this gov- 
ernment at the same time denying any responsibility for accidents that 
might happen to the steamer from the insecurity of her position. The 
cause of the order is only conjectural, but is supposed to proceed from 
dispatches received from New Orleans by the schooners Fairy and 
Heroine, that arrived some forty hours in advance of the Ohio, under 
charter (it is said) by the Spanish consul. 

You are better informed of what has passed, and is passing, in rela- 
tion to the expedition, than we can be in Havana, and I will not, there- 
fore, presume to give you reports, but only observe that great excitement 
prevails here. Some nineteen armed vessels of the Spanish navy are 
coasting around various parts of the island to intercept the reported ex- 
pedition. I do not myself believe them very efficient, and should the 
invaders be in steamers, doubt not but they will be enabled to effect a 
landing. 

The government is receiving three thousand militia in Havana to 
garrison and protect the city - in the event of the necessity of sending all 
the troops to the interior. Those officers that are placed in command, 
with whom I am acquainted, have never discharged a military duty, or 
fired a gun. 

We shall probably have a good deal of disorder in the city, if civil 
war should break out. The lower classes are ignorant, idle, debased, 
and only kept in order by the strong arm of the military. When that 
is removed it is not easy to foretell the consequences, as they may 
think insults and attacks upon Americans would be acts acceptable to 
the authorities who are believed to doubt the good faith of the Presi- 
dent, the entire government, and suspect the connivance of all Ameri- 
cans. 

# # # # & 

I enclose herewith a translated editorial of the official marine paper 
of this da} 7 , and of an order published in the Gazette of the 18th instant, 
by which you will see what the Spaniards think of the expedition. 
The order exhibits their method of arresting fugitives. 
I have the honor to be, &c, 

ROBERT B. CAMPBELL. 
Hon. John M. Clayton, 

Secretary of Stale, Washington City. 



[Translation.] 

Don Francisco Javier Mendoza, knight of the royal American order of 
Isabel the Catholic, captain of infantry, with a medal of distinction, 
and one of the prosecuting attorneys (fiscal) of the court of the perma- 
nent executive military commission of this island. 

Whereas Don Cirilo Villaverde, who made his escape from the 
prison of this capital, Don Jose Maria Sanchez Isnaga, Don Ambrosio 
Jose Gonzalez, Don Juan Manuel Macias, the Licentiate Don Pedro 
Aguero, Don Victoriano de Arrieta, Don Caspar de Betancourt y Cis- 



328 CASE OF THE BLACK WARRIOR, ETC 

meros (alias el Lugareno,) and Don Cristobal Madan, whom I am pros- 
ecuting for the crime of conspiracy against the legitimate rights of her 
Majesty, (whom God save,) directed to bring on an insurrection in this 
country and the island of Puerto Rico, to obtain their independence 
from the metropolis — the two former, who have before been tried, and 
incurred the penalties of rebels, insisting in their previous criminal pro- 
jects, have absconded themselves from this city, and other places of the 
island where they had been residing, exercising the powers conferred 
by royal ordinances upon officers of the army — I do by this, my first 
proclamation, cite, call, and summon the above named individuals to 
present themselves personally, within the precise term of nine days, at 
the public prison of this place, to produce their pleas and legitimate 
defences, in the understanding that if it is not complied with in the 
given time, the actions will be continued against them, and they will 
be sentenced as rebels by the council of war of this court, without being 
further called or summoned, for such is her Majesty's will. Let this 
proclamation be fixed at the customary places, and published in the 
official Gazette, that it may reach the notice of all. 

FRANCISCO JAVIER MENDOZA. 
Jose Fernandez Cota, Secretary. 

Havana, May 17, 1850. 



Translation from the " Diario dc la Marina," of Havana, dated Sunday y 

May 19, 1850. 

It is publicly said that the pirates are about to carry into effect their 
villanous plans of invasion of this tranquil Antille. The last news 
from the neighboring continent appear to leave no doubt about the pre- 
parations made for undertaking an enterprise, the result of treason, and 
which could only have met the concurrence of the most ignorant and 
desperate rabble, that docs not mind dangers, does not examine risks, 
and for whom the most capricious rapacity is the supreme law of 
action. 

In truth, it was time that the pirates should go to sea — that they 
should come out displaying their forces and vigor ; it was time for them 
to come to try on our coasts that heroism they boast of; it was time 
that the heroes of the most infamous vandalism should become ac- 
quainted with the loyalty, bravery, and discipline of our navy and 
army- — the loyalty, bravery, and patriotism, of the inhabitants of Cuba. 
And it would really be a pity that they should not reach the coast — a 
pity that the smell of Spanish powder should frighten away the vul- 
tures ! — a great pity that those boasts should become reduced to mere 
sham ! Great crimes need a greater chastisement; and we would am- 
bition for our history the honor of inflicting it. Is it not to be permitted 
a faithful people to wish occasions on which to display to the world 
with pride their honest and generous heart ? 

It is true that the quality of the undertaking, and the importance of 
those who intend to carry it on, do not even present them to us in such 



CASE OF TEE BLACK WARRIOR. ETC 329 

a shape that a victory over them could flatter the pride of those who 
have in. their veins the blood of Pelago and Cortes. But small as the 
glory might be, that rabble being a real plague, in destroying it, would 
not we do a signal service to humanity? This is precisely the reason 
why we anxiously desire the villains to attempt coming upon our coast. 
On the other part, after so much has been said about the pretty 
expedition, when an attempt has been making to wound the susceptibility 
of our race, is it not to be allowed us to anxiously desire that the purity of 
our blood should be put to the proof, if it is only that of one single man 
that any one should wish to examine ? It is well to consider the forces 
of the expedition contemptible before our immense resources, and small 
the honor we might acquire by destroying those pirates ; but let them 
come to our shores, that we may at once know the extent of their mad- 
ness, and exhibit on them an imperishable chastisement. 



Mr. Campbell to Mr. Clayton. 
[Extracts.] 

Consulate of the United States, Havana, 

May 22, 1850. 

Sir : I have the honor to enclose, herewith, a copy of a short corre- 
spondence with the Captain General, growing 1 out of a publication in 
the Evening Bulletin of the 20th, one of the government papers. The 
Bulletin stated that the general of marine had captured at Contoy two 
vessels and some hundred men. 

Knowing nothing of the particulars, beyond the report which you 
will find republished in the paper of the morning of the 21st, herewith 
transmitted, my letter to the Captain General was written with great 
caution and respect, as you will see. 

I enclose, herewith, a translated proclamation and edict of the Cap- 
tain General, declaring the island in a state of siege, and proclaiming 
martial law, &c, &c. ; a translated copy of the account given of the 
capture of two vessels, and about one hundred men at Contoy, with the 
comments thereon. 

I have the honor to be, sir, &c, 

ROBERT B. CAMPBELL. 



Consulate of the United States, Havana, 

May 20, 1850. 

Sir: Having understood that his excellency the general of marine 
had captured, on or near the Isle of Contoy, two vessels, and about one 
hundred men, I would respectfully ask of your excellency whether the 
vessels were or not under the American flag. If under the American 
flag, whether or not they were furnished with regular and proper 



330 CASE OF THE BLACK WARRIOR, ETC. 

papers ; whether the men were, in whole or in part, American citizens. 
Should the captured vessels be bona fide American, and the men, or any 
part of them, American citizens, I would at the same time respectfully 
ask of your excellency to be informed of the circumstances of the cap- 
ture and arrest, and the nature of the offence charged against them. 

I have the honor to be, with considerations of great respect and 
esteem, your excellency's most obedient servant, 

ROBERT B CAMPBELL. 

His Excellency the Count of Alcoy, 

Governor and Captain General of the Island of Cuba. 



[Translation.] 

[seal.] Political Secretary's Office. 

As the captured vessels referred to in your lordship's communication 
of yesterday have not arrived in this port, and his excellency the com- 
mander-in chief of this naval station is not here, it is not possible for 
me to give an answer to the particulars embraced in your said letter, 
which I shall be enabled to do upon having information when his ex- 
cellency returns. Which I communicate to your lordship in answer. 

God preserve your lordship many years. Havana, May 20, 1850. 

THE COUNT OF ALCOY. 

The Consul of the Ufiited States of America. 



GOVERNMENT AND CAPTAIN GENERALCY OF THE ALWAYS FAITHFUL ISLAND OF CUBA, POLITI- 
CAL SECRETARY'S OFFICE. 

Inhabitants of the always faithful island of Cuba: 

The Governor Captain General and commander in chief of her Ma- 
jesty's army to-day addresses you, to make known to you that some 
depraved foreigners, without opinions or principles, without country or 
feelings — the miserable dregs, in their greater part, which the convul- 
sions of Europe have thrown upon America in these last years, and the 
same who last year attempted to come to the island from the territory 
of a friendly nation, where they commenced to assemble — are at last 
this &&y upon our soil, to try to realize their rash and infamous under- 
taking — an undertaking unexampled in the annals of the civilized 
world — a vandalic attempt, having no other object or purpose but pil- 
lage, licentiousness, the ruin and destruction of a country a model of 
happiness, which they barefacedly announce as offering them a better 
field for enriching themselves than the Californias, with the spoliation 
of all property, to be distributed among themselves as the recompense 
of their exploits, with the breaking up of all bonds, and the relaxing of 
all those ties which constitute society in this precious Antille, and by 
which means she has arrived to that state of prosperous fortune she 
now flourishes in. Their vehement desire is to sink her to a state of 



CASE OF THE BLACK WARRIOR, ETC 331 

anarchy, and bring on the horrors of a civil war, but of a civil war, the 
character and consequences of which «I need not enumerate to you. 

But keep calm, however. I was prepared to receive them. Their 
destiny carries them to their goal, and they shall obtain it. I assure 
you that the sacred rights of nations and of Spanish nationality cannot 
be violated at a less cost. Your well-known fidelity, more than the 
interests of family and property, is to me a perfect guarantee. I un- 
derstand the cry of indignation with which you will repel the villains ; 
but their blindness deceives them, and they perhaps do not hear it. It 
is on this account that I take charge of the message, with the loyal and 
brave army under my command, in the same manner that her Majesty's 
navy will do it on the waters of the island, and anywhere that the}* 
should run to hide themselves. Inhabitants ! I hope that no one will 
observe a wrong conduct. Trust to the vigilance of the authorities, and 
in the forces of the Queen confided to me for }*our protection, and for 
the defence of her dominions. 

A respect for the laws, and consideration lor the noble behavior of 
every honest resident, will be the soldier's guide. A rigorous and un- 
limited punishment, mind you, will await those who should forget what 
the country expects of all her children, let them be Spaniards of one 
or the other hemisphere. 

The hour of combat has sounded, and its effect shall be heard of in 
these seas, without any human consideration or reflection restraining 
me. Do not, however, forget that calm will soon awake again. 

THE COUNT OF ALCOY. 

Havana, May 19, 1850. 



[Translated from the Diario de la Marina of Havana, May 21, 1850.] 

Our readers have already seen, in the extra published yesterday 
by us, the result 'of the first attempt which our most excellent com- 
mander general had with a part of those who no doubt, in a moment of 
drunkenness, intended to disturb the peace we enjoy. We are informed 
that such was their fright, the meanness and cowardice displayed in 
his presence by those who call themselves the heroes of Palo Alta, that 
they inspired him with the most profound and deserved contempt. 
They not only surrendered without fighting — not only weakly implored, 
like miserable women, for an undeserved pardon, but the}* had no hesi- 
tation in resorting to the meanest and most contemptible means. Such 
are the men who, in their drunkenness, dreamed of conquering the 
island of Cuba! Compare that conduct to that of our gallant soldiers, 
and the world will wonder at their stupid attempt. The case is this : 
the}* believed they had merely to arrive and reap the profits of their 
piracy. In their delirium they- imagined themselves owners of the 
thousands of dollars offered them by the traitors, and of the rich soils, 
the products of which were to furnish them the means of easily enrich- 
ing themselves. This hope increased their ambition, and they said, 
let us go to Cuba ; but they met on their wa}~ a man with a Spanish 
heart, and the sight of him terrified and confounds them, and in his 



332 CASE OF THE BLACK WARRIOR, ETC. 

presence they become humiliated, discouraged, and debased. The samo 
will very soon happen with the- rest. It is probable that their worthy 
chief, celebrated in other lines of action, will seek, in a shameful flight, 
the only means of getting out of his difficulties ; but uselessly: our 
worthy authorities have taken the necessary measures, and the hour of 
expiation has already sounded for him. 

We do not know whether <my of our brave men have sealed with 
their blood their loyalty to the throne and their country. Should it 
be so, we shall mourn tor the victims sacrificed on the altars, of duty ; 
but besides the consolation that their blood will be revenged, we have 
that of saying, with a noble pride, that the bravery of the indomitable 
Spaniard is now the same as in the limes of the illustrious Queen that 
brought to these lands civilization and religion. Still more : that if 
there exist any deceived persons in the neighboring nation that ima- 
gine such undertakings easy, they will be undeceived, now that they 
have practically viewed, not only a determined and gallant army and 
navy, but numberless enthusiastic youths, who, when the least danger 
appeared, hastened to arm themselves for exterminating the banditti. 
In the place of proselytes, perhaps expected by them in their delirium, 
they found in all the inhabitants, without distinction, strong hearts ready 
to repel that loathsome and vile canaille. From this day the queen of 
the Antilles will march, secure of her future, by the road of prosperity 
that has been opened to her for some time by the protecting hand of 
our sovereign, and the solicitude, tact, and care of the authorities that 
so well govern us. 



GOVERNMENT AND CAPTAIN GENERALCY OP THE ALWAYS FAITHFUL ISLAND OF CUBA, MILI- 
TARY SECRETARY'S OFFICE. 

A-ii edict. 

i 

Don Frederico de Roncali, Count of Alcoy, Governor and Captain 
General of the island of Cuba, and commander-in-chief of the army— 
I make known that the foreign pirates, who have been assembled and 
ready for some time, having already landed upon the territory confided 
to me by her Majesty, for the purpose of carrying into effect their sac- 
religious designs, in the sacred duty of preserving the interests of the 
country, as well as of protecting the lives and property of its faith- 
ful inhabitants, making use of the extraordinary powers in me vested, 
and of those to me appertaining as commander-in-chief, I ordain and 
command : 

Article 1. All the territory of the island of Cuba, its isles and ad- 
jacent keys, are declared to be in a state of siege, and thereby sub- 
jected to all its legal consequences as long as the circumstances causing 
it shall continue. 

Notwithstanding the active and pre-eminent action which by this 
declaration the military jurisdiction becomes entitled to, all other tri- 
bunals and courts will continue in their respective exercise, having 
jurisdiction in all common or ordinary business not excluded by this 
edict. 



CASE OF THE BLACK WARRIOR, ETC 333 

Art. 2. All the coasts of this island and its waters are declared in a 
state of blockade by her Majesty's naval forces ; and in consequence 
thereof, all vessels can be required to produce their papers and docu- 
ments, and be scrupulously examined. Those coming loaded with 
passengers, whatever the port they come from, or are bound to, may 
be, are by that fact considered suspicious; but if their papers and 
registers do not confirm them as such, they will in that case only be 
ordered to keep away. Should the contrary be the case, such as a 
marked defect in their papers, having cargoes of arms and ammunition, 
or effects which in any manner may bring on civil war on the island, 
they will immediately be declared enemies and treated as pirates, in 
conformity to the ordinances of the royal navy. 

Art. 3. All persons detected in any number belonging to the invading 
bands will be immediately shoL. 

Art. 4. Although there is not the remotest expectation that any in- 
habitant of this country will be found associated with the horde of rob- 
bers, forgetting his sacred duties to his queen, country, and family, and 
unknowing his own interest — should any one, however, by misfortune, 
commit such an infamous crime, he will be considered as one of the 
said foreign horde, and subjected to the same penalty mentioned in the 
previous article. 

Art. 5. Any one serving them as a spy, or voluntarily aiding them 
with news, money, arms, provisions, or doing them any service, will 
be immediately shot. 

Art. 6. To the same penalty will be condemned all those who, by 
public or hidden and criminal means, should attempt to change the 
good opinion of the inhabitants, the subordination of the slaves in the 
plantations, or in the least alter their internal order, or that should not 
hasten to give aid, advice, and co-operation, with immediate obedience, 
to the legitimate authorities. 

Art. 7. Commandants general of departments, lieutenant governors 
in their districts, and commanding officers of troops of operations, and 
also those in garrison in castles and forts, are charged with the most 
exact and punctual compliance. All public employes, of any rank, 
belonging to any class or branch of the government, will co-operate 
for the best of the service. Any negligence or connivance will incur 
the penalty of death. 

THE COUNT OF ALCOY. 

Havana, May 19, 1853. 



[Translated from the Official Gazette of Havana, May 21, 1850.] 

LONG LIVE QUEEN ISABEL— LONG LIVE SPAIN. 

Hardly had the noble cry of indignation burst out from these faith- 
ful inhabitants, produced by the news that the vandalic horde that 
intended to invade this island had already set foot on her; scarcely 
had the word of our superior auihority, in his proclamation and ('diet, 
published by us last night, been heard, when we have already the in- 



334 CASE OF THE BLACK WARRIOR, ETC 

expressible pleasure of being able to announce a victory. The arrival 
of her Majesty's steamer Pizarro, which came in to-day, having on 
board his excellency Sr. D. Francisco Amero y Penaranda, com- 
mander general of this naval station, has furnished us the important 
news of the event of two vessels belonging to the vandals having been 
captured. 

The steamer had sailed from this port on the evening of the 16th. 
On the 17th she learned at the light-house on Cape San Antonio that 
nothing had occurred on that side ; and having afterwards met the 
brig Habanero, she towed the brig, and both vessels went upon Con- 
toy, where a ship and a hermophradite brig were lying, both being 
merchant vessels. These vessels had on board upwards of one hun- 
dred men, of various nations, badly dressed and equipped, who had 
arrived from the isles of Canto and Mujeres, near Yucatan, and which 
were the rendezvous of the pirates engaged in the expedition. 

The result of this encounter and of the proper measures taken by the 
most worth}'' and intrepid General Amero, has been the capture of 
both vessels, and of all the adventurers that were on board, and like- 
wise of the whole correspondence of D. Narcisso Lopez, the chief of 
the expedition, that two days before the event we relate had taken a 
course northward, with some people, to fall into, as doubtless they 
have fallen at this time, the hands of our brave troops, and paid with 
a shameful death his detestable conduct. The correspondence taken 
will furnish very interesting facts for a complete knowledge of that 
hair-brained and criminal plan ; so that we ought on many accounts 
to consider this event of the greatest importance. 

The Pizarro has brought fourteen of the prisoners that exceed a hun- 
dred. By their own saying, they appear to be leaders of the expedi- 
tion ; they belong to various nations, and have shown an inexplicable 
pusillanimity for men who had dreamed of so daring an undertaking. 

We have also learned by the Pizarro, that all the force the adven- 
turers rely upon does not exceed five hundred men ; that their inten- 
tion was, to land in the jurisdiction of Matanzas, and direct their 
steps afterwards to Havana ; to this Havana, that had scarcely read 
the edict of the superior authority, ran to call for arms to help him in 
case of necessity, for the chastisement of the expeditionists ! To this 
Havana, where twelve hours of voluntary enlistments has placed 
at the disposition of the government thirteen thousand able men, 
ready for war ! What will those miserable men say at the sight of 
such enthusiasm, decision and patriotism ? But could they expect any- 
thing else, being men whose only object was pillage — men who thought 
to divide among themselves our property — to be able to give to every 
officer $20,000 and an estate, and to each soldier $4,000 at the end of 
the campaign? 

It is to be hoped that this lesson will undeceive those miserable 
men, who, being thirsty for gold and blood, undertake adventures in 
search of boot} 7- to satiate their hunger. If there are unfortunate coun- 
tries existing, in which they might perhaps try with impunity their 
daring, now they will have perceived that it is impossible in any part 
of the Spanish monarchy, and less so in this rich and happy island, 
sensible and loyal, that owes her prosperity and aggrandizement to 



CASE OF THE BLACK WARRIOR, ETC 335 

her undeviating fidelity, and that, contented, proud and grateful, relies 
for existence and a future on her unalterable union with the metro- 
polis. 



Mr. Campbell to Mr. Clayton. 

Consulate of the United States, Havana, 

May 31, 1850. 

Sir : I have the honor to enclose herewith, duplicate copies of a 
correspondence with the Captain General of the 20th instant ; an origi- 
nal letter to the Captain General of the 24th instant, which, upon 
being informed of the subject, of which he treated, he declined to re- 
ceive, on the ground that diplomatic powers were not vested either in 
himself or me, and the affair could only be treated of, and settled by 
yourself and Mr. Calderon ; a statement of a conversation had in an 
interview of Captain Randolph and myself, with the Captain General, 
and general of marine ; copy of a telegraphic dispatch to the collector 
of Mobile, dated 27th instant, to be sent to you ; copy of a letter of 
the 29th instant, written at the request of Captain Tattnall, and the 
Captain General's reply thereto ; copy of a letter, of the 29th instant, 
to the Captain General, with extracts from a letter from Judge Marvin, 
proving that the persons arrested at Contoy had no participation in the 
expedition of Lopez ; copy and translation of a letter from the Captain 
General, dated 29th instant, being a second letter in reply to my com- 
munication of the 20th instant. 

The foregoing papers will explain my opinions and acts on the cap- 
ture made at Contoy. The letter, the reception of which was declined 
by the Captain General, was written on the morning of the 24th, 
sealed, and about to be sent, when Captain Randolph arrived in the 
Albany. Hoping that the verbal interview about to be had with the 
Captain General would end in the delivery of the ships and prisoners, 
the letter was not sent, but placed in my pocket, to be delivered in the 
event of our reasonable requests and (as I believe) just demands being- 
refused. They were refused, and my letter was offered and taken, but 
returned for the cause before stated. 

After our interview with the Captain General, and the general of 
marine, (who admitted the captured vessels to be American,) Captain 
Randolph immediately proceeded to sea, (followed the next morning 
by the Germantown, Captain Lowndes,) with a determination, if pos- 
sible, to intercept and retake both the vessels and prisoners, should 
they be alone, or under convoy of Spanish men-of-war. This, in con- 
sultation, we agreed he had a right to do under the laws of nations, in 
conformity to the policy of the United States so ably set forth by Mr. 
Webster in the Ashburton correspondence, and under the act of Con- 
gress authorizing oar men-of-war to capture any vessel which should 
unnecessarily detain an American merchant ship in the Gulf of Mexico. 
All must admit that these ships were unnecessarily detained after 
having been demanded to be sent home for trial, and that demand 
refused. 



33G CASE OP THE BLACK WARRIOR, ETC. 

Captain Tattnall's views of the right or expediency of Captain Ran- 
dolph's intended course must have been different, as I understood from 
him, on his retui n, that he had ordered Captains Randolph and Lowndes 
temporarily to other cruising ground. Captain Tattnall, however, on 
his first visit, explicitly informed the Captain General that " if he fell in 
with the captured vessels, he should feel it to be his duty to overhaul 
them, interrogate the officer in charge, and then judge for himself of 
the course to be pursued." 

The Saranac, Captain Tattnall, returned from Key West, and yes- 
terday (30th) he, with Judge Marvin, collector Douglass, of Key West, 
and myself, called on the Captain General ; and Captain Tattnall said 
to the Captain General that " he was about to return to the United 
States, and should be highly gratified to be able to communicate to his 
government that he had been permitted to see and converse with the 
prisoners from Contoy, as, under existing circumstances, it might do 
much good, and tend to allay any excitement that might exist at home." 
The Captain General, turning to me, said, " personally he had no 
objection to permit the prisoners to be seen and conversed with, but 
the law would not permit it ; and were he to grant permission, the 
audiencia could and would accuse him of violation of the law, and 
have a right to censure his conduct ; that the prisoners here were well 
treated, and there - was nothing of which they could complain, unless it 
was their not being permitted to go into the streets ; that the marine 
court, before which their trial was pending, consisted of calm and intel- 
ligent officers, who would dispassionately weigh the testimony and do 
full justice." The question being Captain Tattnall's, the answer in- 
tended for him, and Captain Randolph with myself having previously, 
though fruitlessly, demurred to the decision as a violation of the rights 
of the prisoners under treaty stipulations with Spain, which guaranty 
to them free access to counsel of their own selection, and that this gov- 
ernment, under no circumstances, had a right to bring them to trial, I 
did not attempt to controvert what he said. 

The whole subject is now before you. Your consul, your naval 
officers, can, do nothing for the relief of the parties; and it is left lor 
the President to adopt such measures as his well known firmness 
patriotism, and devotion to the honor and interest of his country may 
dictate. 

With great respect and esteem, I have the honor to be, sir, your 
most obedient servant, 

ROBERT B. CAMPBELL. 
Hon. John M. Clayton, 

Secretary of t>t:tte, Washington City. 



Consulate of the United States, Havana, 

May 20, 1850. 

Sir: Having understood that his excellency the general of mirine 
had captured, on or near the Isle of Contoy, two vessels and about 
one hundred men, I would respectfully ask of your excellency whether 
the vessels were or not under the American flag. If under the Ameri- 



CASE OP THE BLACK WARRIOR, ETC 337 

can flag, whether or not they were furnished with regular and proper 
papers ; whether the men were in whole or in part American citizens. 
Should the captured vessels be bona fide American, and the men, or 
any part of them, American citizens, I would, at the same time, 
respectfully ask of your excellency to be informed of the circumstances 
of the capture and arrest, and the nature of the offence charged against 
them. 

I have the honor to be, with considerations of great respect and 
esteem, your excellency's most obedient servant, 

ROBERT B. CAMPBELL. 

His Excellency fhe Count of Alcoy, 

Governor and Captain General of the Island of Cuba, fyc. 



[Translation.] 

[seal.] Political Secretary's Office. 

As the captured vessels referred to in your lordship's communication 
of yesterday have not arrived in this port, and his excellency the com- 
mander-in-chief of this naval station is not here, it is not possible for me 
to give answers to the particulars embraced in your said letter, which 
I shall be able to do, with a knowledge of circumstances, when his 
excellency returns. Which I communicate to your lordship in answer. 

God preserve your lordship many years. Havana, May 20, 1850. 

THE COUNT OF ALCOY. 

To the Consul of the United States of America. 



Consulate of the United States, Havana, 

May 24, 1850. 

Sir : All attempts which were being made to disturb the tranquillity 
of this island having signally failed, and no present interest or emer- 
gency existing to bias the judgment, or prevent a calm and dispassion- 
ate view being taken of all the circumstances attendant upon, and con- 
nected with, the capture of the two vessels and all on board, at Conloy, 
by his excellency the general of marine, and that officer having been 
in port some thirty hoars without my receiving the information which, 
from your excellency's official communication of the 20th instant, I had 
a right to expect, and was most anxious to receive, before again ad- 
dressing your excellency : having heard, however, that a portion of the 
prisoners are placed, or are immediately to be placed, upon trial, I 
feel it a duty to draw the attention of your excellency to a few sugges- 
tions, made for the purpose of avoiding, in certain contingencies, mis- 
understandings, and possibly difficulties, between the government of 
the United States and her Majesty the Queen of Spain. 

One of the vessels captured at Contoy is said to be the American 
bark Georgiana. By reference to the New Orleans price-current, I find 
that the American bark Georgiana, Benson, master, was, on the 25th 
of April, regularly cleared by G. W. Breedlove, with a cargo of coal 
for Chagres, which proves the sailing of that particular vessel to have 
22 



338 CASE OP THE BLACK WARRIOR, ETC 

been with the knowledge of the collector of the port, and that her pa- 
pers were in due order. 

Should the Georgiana be one of the vessels captured by his excel- 
lency the general of marine, she is an American, and could only have 
been legally captured for the actual or intended violation of law in 
Spanish waters. To establish this position, I would ask, can Spanish 
law extend out of and beyond Spanish territory ? Can it be enforced 
on the high seas, or in foreign jurisdiction ? Must it not be admitted/ 
that the prerogative of her Catholic Majesty cannot legally extend be- 
yond her dominions ; and would not any attempt to enforce it beyond 
such limits be assuming for Spain the exercise of an authority extra-ter- 
ritorial, and which might be exercised, if it has not already been done, 
to the injury of the persons and property of the citizens of other nations, 
while on the high seas and under the flag of their country ? The doc- 
trine which has been advanced and advocated by one of the greatest 
statesmen of the age, and which, in my opinion, the government of the 
United States has held, and is determined to hold in all future time, and 
at all hazards, is, that every merchant vessel on the high seas is right- 
fully considered as a part of the territory to which she belongs, and the 
forcible entry upon any such vessel by a foreign force is prima facie a 
wrong, and the government under which such entry is made must show 
cause of justification. 

There may have been justification in this particular instance for 
temporary detention of the two vessels ; but, for aught I know to the 
contrary, no overt act has been committed against the Spanish govern- 
ment by the master or those on board the captured vessels. There 
may have been intention, but that intention may have been repented of 
and changed. But if even the intention of overt acts against this gov- 
ernment was entertained at the time of capture, it cannot vest a power 
in this government to arrest the parties in a foreign country to be 
brought to Cuba for trial. To illustrate this it may not be amiss to 
refer to the case of the Due d'Enghien, (with which your excellency 
is familiar,) to prove the opinion of the civilized world on a parallel 
case. If (so far as appears) offence against any government has been 
committed by the masters or others on board the captured vessels, 
(supposing them to be American, with regular papers,) the offence has 
been against the laws and government of the United States, and to that 
government alone are they amenable, unless they have, in some way, 
violated the laws of Mexico. 

The foregoing views are briefly submitted to your excellency in the 
confident belief that they are correct ; and if so, that the parties already 
here with the ship, and others to arrive, will immediately be given up, 
that they may be sent to the United States for trial, and the legality of 
the capture and detention be left to the governments of the United 
States and Spain to be decided upon. 

I have the honor to be, with considerations of great respect and es- 
teem, your excellency's most obedient servant, 

ROBERT B. CAMPBELL. 

His Excellency the Count of Alcoy, 

Governor and Captain General of the Island of Cuba, Sfc. 



CASE OF THE BLACK WARRIOR, ETC 339 

Statement of a conversation had by Captain Randolph and Mr. Campbell in 
an interview with the Captain General. 

Havana, May 24, 1850. 

The United States sloop of-war Albany, V. M. Randolph, commander, 
having this day arrived in the port of Havana, and it having been 
reported to Captain Randolph that two vessels and several men, said 
to be Americans, had been captured at or near the island of Contoy, 
belonging to Yucatan, he, with the consul of the United States for 
Havana, called upon the Captain General, for the purpose of investi- 
gating the matter. 

After the usual salutations, Captain Randolph told the Captain Gen- 
eral that he had understood that two vessels, reported to be American, 
had been captured by the general of marine, together with about one 
hundred men, of whom some fourteen had been brought to this port. 

The Captain General replied that two vessels with some men had 
been captured ; that this government had in their possession proofs that 
those vessels and men were connected with the expedition which left 
New Orleans for the invasion of this island. 

Captain Randolph then desired to know whether the captured ves- 
sels had the American colors flying ? Whether they were on neutral 
ground, or on the high seas, or on Spanish waters ? Whether the men 
captured were Americans in whole or in part '? Whether any overt 
act had been committed by them upon Spanish territory ? 

The Captain General said, that owing to the general of marine's short 
stay in this port, he had not received official information of the circum- 
stances connected with the capture to enable him to give answers to 
the questions propounded to him, but observed that pirates could be 
captured wherever found, whatever flag or papers they might have. 

Captain Randolph said to the Captain General, that vessels under 
American colors could not be stopped on the high seas by a foreign 
force, unless suspicions were entertained of their being engaged in 
piracy ; and then, if proper papers were found on board, the vessels 
and men had to be delivered up to the authorities of the United States ; 
and in consequence he, Captain Randolph, demanded from the Captain 
General the delivery to him of the two vessels and the men captured 
by the general of marine, that they might be carried to the United States 
for trial, which the Captain General refused to accede to, saying that 
he had no jurisdiction over the matter, it being a case which was to 
be tried by the marine court, over which he had no jurisdiction. 

Upon being asked by Captain Randolph for permission to see the 
prisoners now in the port of Havana, the Captain General answered 
that he had no authority ; that the general of marine, being the judge 
of the causey would, if he could, let Captain Randolph see the prison- 
ers ; but that, if permission was not granted, the cause would be, that 
the prisoners, being under the action of law, the summarial proceedings 
not having come to an end, they, by the Spanish laws, could not be 
permitted to hold communication but with the court. 

On being referred to the general of marine, the consul and Captain 
Randolph asked the Captain General if he was not the head and chief 
of this government. He answered " Yes." He was then told that he 



340 CASE OF THE BLACK WARRIOR, ETC 

was the source from which information ought to be sought, and not from 
his subordinates. 

The consul and Captain Randolph explained to the Captain General 
their views in regard to the policy heretofore pursued by the govern- 
ment of the United States in relation to the right of visit and search, 
and expressed their opinion that the affair they had been referring to 
was more serious than his excellency thought of, for it might involve 
the question of war. 

His excellency thought differently, and said that he was personally 
willing to give all satisfaction, but that he could not give way to threats ; 
and if war was the consequence, he was prepared to meet it, using the 
expression, " que vengan" — " let them come." The consul and Cap- 
tain Randolph disclaimed any intention of making threats. 

Captain Randolph informed the Captain General, that as he had not 
been able to obtain any satisfactory information, and was not permitted 
to see and converse with the prisoners, he would report to his govern- 
ment that two American vessels and several American citizens had 
been captured on the high seas or on neutral ground, and brought to 
this port as prisoners, and that, in consequence, war virtually existed 
between the United States and Spain. 

The Captain General said that Captain Randolph might do as he 
pleased, but the report would not be correct, for the vessels and men 
captured formed part of the expedition under Lopez, were nothing but 
pirates, and therefore subjected to the laws of nations, enforced by the 
power to which the cruiser that captured them belongs. 

Captain Randolph observed that he would perhaps think proper to 
address his excellency a communication upon the subject, and desired 
to know if it would be received. 

The Captain General answered, that if Captain Randolph's letter 
was in proper terms it would be received, a copy thereof sent to the 
general of marine to obtain information, and when this was obtained, 
he, the Captain General, would be happy to answer Captain Ran- 
dolph's communication, accompanying a copy of the general of marine's 
report in relation to the capture of the vessels and men, &c, and that 
he would also forward to Mr. Calderon, the Spanish minister at Wash- 
ington, a copy of the correspondence, as it was a subject which had to 
be arranged by the representatives of the two governments, Mr. Clay- 
ton and Mr. Calderon, who alone had diplomatic power. 

In the course of conversation, the consul took out and presented to the 
Captain General a sealed communication he had prepared, which his 
excellency, upon learning from the consul the contents thereof, refused 
to receive, asserting that the consul had merely commercial functions, 
and therefore had no right to interfere in the affair ; and observed also, 
that he, himself, nor Captain Randolph had any diplomatic powers. 

The Captain General tried to persuade Captain Randolph not to do 
any more in the business, for that he had already done everything 
which his duty as an officer of the United States required of him, and 
more so, when it was in favor of men undeserving of his sympathy, 
and who had a year ago abused him for the affair at Round Island. 

The Captain General was courteous in coversation, and appeared 
to be trying to impress his opinion upon our minds. 



CASE OF THE BLACK WARRIOR, ETC 341 

Immediately after the above interview Captain Randolph and the 
consul called upon the general of marine to investigate the same affair. 

Captain Randolph said to the general that he had come to inquire of 
him whether it was true that he had captured two vessels and some 
men, to which the general answered that such was the fact. 

Captain Randolph then desired to be informed if the vessels had 
American colors flying, and the men were Americans ? The general 
answered that the vessels had no colors flying, and that the men on board, 
some sixty or seventy, were partly Americans and the rest of various 
nations. Captain Randolph asked if the vessels and men were in 
Spanish or neutral waters ? The general replied that they were on 
neutral ground, it is true, but that having proofs in his possession that 
they formed a part of the expedition which was about to invade his 
country, he had gone and captured them as pirates, and that some of 
the men are now in this port. 

The general was asked by Captain Randolph what evidence he had 
that those vessels and men formed a part of the expedition? The answer 
was, that he had reliable information, corroborated by the papers found 
with them, and their own confessions. Whether force or threats had 
been used to obtain those confessions? The general said that this was a 
question which he could not accept. Being asked by Captain Randolph 
whether the vessels and men had any papers, and avowed themselves 
to be Americans, the general replied that they had not avowed anything ; 
that when his steamer was seen by them approaching, they understood 
their position, and said nothing; that he had not examined the papers ; 
that his stay there was very short, merely long enough to put the cap- 
tured vessels and men in charge of a sailing vessel of war to bring them 
to this port ; and that he picked out and brought in the steamer Pizarro 
such as he considered leaders. 

Captain Randolph also inquired what class of vessels they were ? The 
general answered, two brigs; whether one of them is a barque ? The 
general did not think any of them had three masts. 

Captain Randolph then said to the general of marine that he had 
been informed that two American vessels having American flags and 
papers, had been captured, with a number of men, on the high seas, and 
beyond Spanish jurisdiction ; and he therefore demanded the imme- 
diate delivery of the captured vessels and men to him, to take them to 
the United States for trial by the United States. 

The general answered, that he had no authority; that the vessels and 
men had been captured as pirates ; that he had proofs of it ; and that 
the laws of this country would try them. 

Captain Randolph requested permission to see and converse with 
the prisoners that are here, so as to obtain a fair statement, which was 
refused. Captain Randolph then demanded it as a right. The general 
refused it again, observing that, as the two captured vessels and the 
greater part of the men had not yet arrived in this port, no declarations 
had been taken from them ; that the summarial proceedings were not fin- 
ished ; therefore the laws of the country did not permit the prisoners 
to hold communication but with the court that was to try them ; that 
after that they would be allowed counsel, and all facilities for making 
their defence. 



342 CASE OP THE BLACK WARRIOR, ETC 

Captain Randolph said to the general of marine that it was rumored 
that confessions had been extracted from the men by putting the rope 
to their necks. To this the general answered that those were vulgari- 
ties ; that no judicial investigation had yet commenced ; that the men 
in conversation had acknowledged that they formed a part of the expe- 
dition which, under the command of Lopez, was to invade this island. 
After that conversation the general stated that the captured vessels 
were American, and the men in part Americans. 

The consul and Captain Randolph observed to the general that it 
would be better for him to deliver up the vessels and men ; that the 
laws of nations were plain; that the capturing of the vessels and men 
on neutral ground was illegal. The case of the Duke d'Enghien, under 
the empire, was cited by us as a parallel, and to bring to the general's 
mind the intense excitement produced in Europe and the world by that 
outrage. The general repeatedly asserted that the cases were not 
parallel; that the Due was a gentleman. The consul observed that 
the Duke d'Enghien had nothing to lose but his life and his soul, if he 
was not prepared for death, and these men were in the same position. 
Captain Randolph said the only difference was, that the Duke belonged 
to the blood royal, and these were obscure citizens. But the general 
still thought as he had before expressed it, and appeared greatly aston- 
ished that we should want to consider the two cases as parallel. 

The result of the interview was, that the general of marine refused 
to deliver up the vessels and men, and denied permission to Captain 
Randolph to have communication with the prisoners now in this port, 
observing that, if the captain would remain some days longer in the 
port, he and the consul could then have the opportunity to learn the 
result of the trial, and to communicate with the prisoners. 



Telegraphic dispatch from the United States Consul at Havana to the Hon. 
John M. Clayton, Secretary of State, Washington, to be forwarded imme- 
diately upon receipt by the Collector of Mobile. 

Consulate of the United States, Havana, 

May 27, 1850. 

The Albany and Germantown arrived at Havana on the 24th inst. 
The steamer Saranac arrived on the 25th instant. Captain Randolph, 
immediately on landing, called, with the consul, to see the Captain 
General ; and first requested, then demanded, from the Captain Gen- 
eral to see the prisoners brought from the island of Contoy, which was 
refused. Captain Randolph then asked if, upon the arrival of the ves- 
sels captured at Contoy, they would be given up with the prisoners, to 
be tried in the United States, which was answered in the negative by 
the general of marine. Admitted the captured vessels to be Ameri- 
can, and also refused permission to see the prisoners. The consul de- 
sires particular instructions in relation to the captured vessels and pris- 
oners. The Albany and Germantown were crusing off the harbor 
yesterday to intercept the captured vessels, and a Spanish frigate kept 
near them. The Saranac left port yesterday evening, destination un- 



CASE OF THE BLACK WARRIOR, ETC 



343 



known. Four out of the five prisoners taken at Cardenas were shot on 
Saturday. The Spanish government have on this station about twenty- 
one vessels of war. 

ROBERT B. CAMPBELL. 



Consulate of the United States, Havana, 

May 29, 1850. 

Sir: Captain Tatnall, of the United States ship " Saranac," who 
has this day arrived from Key West, states, that in conversation with 
some of the persons recently engaged in the expedition to Cardenas, 
they had mentioned to him that a second expedition of a similar char- 
acter, but of larger number, was to sail on the 21st instant, destined as 
the last. 

Captain Tatnall does not know whether the report is entitled to cre- 
dence, but deemed it advisable that your excellency should be placed 
in possession of it. 

I have the honor to be, with considerations of great respect and 
esteem, your excellency's most obedient servant, 

ROBERT B. CAMPBELL. 

To his Excellency the Count of Alcoy, 

Governor and Captain General of Cuba, fyc. 



[ L . s.] Political Secretary's Office. 

I remain informed of, and feel obliged to your lordship, as well as to 
the commander of the steamer Saranac, Mr. Tatnall, for conveying to 
me the intelligence he obtained from the piratical adventurers of the 
steamer " Creole " themselves, respecting a second expedition which 
was about to sail on the 21st, with the same destination and object as 
the first. Both the expeditions must form part of the vast plan, as 
your lordship is well aware, carried on upon territory of the United 
States, but as I have in advance information of the whole, I am pre- 
pared to receive, as I did the first expedition, those who should again 
attempt their rash undertaking. 

God preserve your lordship many vears. Havana, May 31, 1850. 

" THE COUNT OF ALCOY. 

To the Consul of the United States of America. 



Consulate of the United States, Havana, 

May 29, 1850. 

Sir: Notwithstanding your excellency having declined to receive 
my last communication upon the ground that the subject of the recent 
capture made by the general of marine must be arranged between Mr. 
Clayton and Mr. Calderon, who alone have the necessary diplomatic 
power, I am again induced to address your excellency on behalf of 
the unfortunate men taken at Contoy, in consequence of receiving from 



344 CASE OF THE BLACK WARRIOR, ETC 

Judge Marvin, the judicial officer before whom was taken the testimony 
of the Lopez party at Key West, the following letter : 

" Learning, from an investigation had before me into the affair at 
Cardenas, that the persons left on board the American barque Geor- 
giana, and the brig Susan Loud, at or near the coast of Yucatan, con- 
stituted no part of the expedition that were to land at Cardenas, but 
were persons who had gone on board these vessels at New Orleans in 
good faith, as passengers bound to Chagres, thence to California ; and 
finding, when the steamer Creole joined them, that they had been de- 
ceived, and that a descent was intended to be made by General Lopez 
and others upon Cardenas, these persons, the passengers of the barque 
and brig, promptly refused to go on the expedition, said they had been 
deceived, and never joined in any way any such expedition. I beg to 
call your attention to these facts, that justice may be done to the inno- 
cent. I speak in general terms, and say that it became evident, upon 
an examination of the persons brought before me, and accused with a 
violation of our laws, that the persons on board the barque and brig 
captured by the Spanish vessels never intended to be connected with 
the expedition to Cuba, but supposed the vessels were bound to Cha- 
gres, and they were on board as passengers." 

The above letter is in general terms, and may admit of exceptions ; 
but if the representations made upon oath at Key West be true, it is 
manifest that most, or all, of the prisoners captured at Contoy were 
innocent, not only in acts, but intention, and abandoned the party as 
soon as its purposes were discovered, and are, consequently, not only 
entitled to compassion for their ignorance and credulity, but their im- 
mediate discharge. 

Nothing contained in this letter is to be construed into an admission 
of the legal right of his excellency the general of marine to capture 
American vessels with the persons on board on the high seas, or be- 
yond Spanish territory. 

Judge Marvin and the collector of Key West are now in Havana, 
and if desired, I will, with them, wait upon your excellency, that you 
may know what has transpired in Key West. 

I have the honor to be, with considerations of great respect and es- 
teem, your excellency's most obedient servant, 

ROBERT B. CAMPBELL. 

To his Excellency the Count of Alcoy, 

Governor and Captain General of Cuba, flfc. 



[Translation.] 

[l. s.] Political Secretary's Office. 

To the ends that may be of interest to the commercial affairs of 
which your lordship has charge, as consul of the United States in this 
place, and having before me your communication dated the 20th instant, 
1 must say to you, after having obtained the circumstances which the 
state of the cause prosecuted before the marine court permits, that it 
is true that, on the morning of the 18th of the present month, were 



CASE OF THE BLACK WARRIOR, ETC 345 

captured by her Majesty's men-of-war in the waters immediate to the 
generally uninhabited island of Contoy a barque and a hermaphrodite 
brig, called, as was afterwards discovered, "Georgiana Lincumbly" 
and "Susan Laud," which vessels had no colors flying, nor did they 
hoist any, notwithstanding they subsequently presented papers show- 
ing them to belong to the United States. Of the individuals arrested, 
it is not yet possible to assure whether any or all are citizens of the 
United States ; it is, however, notorious that the object of the arrest 
they now suffer is to ascertain the more or less direct share they have 
had in the expedition of piratical adventurers that sailed out of New 
Orleans to invade this island, which was effected upon the defenceless 
town of Cardenas by those conveyed by the steamer "Creole," and 
they must form a part of the vast conspiracy planned in the United 
States, which your lordship is aware of. It appears that the two ves- 
sels mentioned sailed out of New Orleans with men, arms, provisions, 
ammunition, and coal, and both communicated with the steamer 
" Creole," transferring to this vessel arms, coal, provisions, and the 
number of men she could take, among whom were the master and cook 
of the said hermaphrodite brig. 

I have already told your lordship all that may be of interest to your 
character and office, and, although perhaps with too many details, I 
have been guided by a desire of giving you all possible information in 
regard to what no doubt has caused in you the most profound indigna- 
tion, the same as in all the inhabitants of this city, without distinction, 
whether national or foreign, including all North Americans here resid- 
ing, because that scandalous attempt of the modern buccaneers is 
repelled by all civilized nations, and their accomplices condemned by 
all laws and the law of nations, as were to the face of the world on 
the last year by the worthy President, General Taylor, those who 
assembled upon Round island, who are the same wretches precisely, 
and for the same purpose, that, on the dawn of the 19th instant, suc- 
ceeded in landing at the defenceless town of Cardenas. 

God preserve your lordship many years. Havana, May 29, 1850. 

THE COUNT OF ALCOY. 

To the Consul of the United States. 



Mr. Campbell to Mr. Clayton. 

Consulate of the United States, Havana, 

May 31, 1850. 

Sir : You are doubtless informed, from Key West, that the two ves- 
sels captured at Contoy were the bark Georgiana and the brig Susan 
Loud, both of whom cleared at New Orleans for Chagres. The Cap- 
tain General, in his letter, has not given correctly the name of the 
bark ; he has added, I presume, to her name the place to which she 
belongs. 

The names of a portion of the men shot at Matanzas, so far as I can 
learn, were George Warner, son of Alison Warner, of Evansville, In- 
diana ; Kelly, a resident of Cincinnati; McGreggor, residence un- 



346 CASE OF THE BLACK WARRIOR, ETC 

known. I have not been able to ascertain the name of the other man 
who was shot, or of the man whose life was spared, and have no 
means of getting the information. The consul at Matanzas may, per- 
haps, be able to obtain their names. 

I have the honor to be, sir, with great respect and esteem, your most 
obedient servant, 

ROBERT B. CAMPBELL. 
Hon. John M. Clayton, 

Secretary of State, Washington City. 



Mr. Clayton to Mr. Campbell. 

Department of State, 

Washington, May 31, 1850. 

Sir : Your dispatches of the 21st and 22d, two of the 28th February, 
7th and 8th of March, three of the 8th, three of the 17th; two of the 
19th and 27th of April; 8th, 16th, 17th, 19th, and 22d of May, 1850, 
have been received. 

The duties devolving upon you in consequence of the fate of the 
hostile expedition against Cuba will require the exercise of all the 
prudence and firmness which you can command. It is the President's 
determination to sustain the honor of this government by the faithful 
discharge of our obligations towards Spain. For this purpose, prose- 
cutions will be commenced against any persons within our jurisdiction 
who may have been concerned in the expedition contrary to the exist- 
ing laws. Whilst actuated by this spirit of good faith towards our 
neighbor, however, the President expects that the Spanish authorities 
will not allow themselves to be misled by exultation or vengeance to 
injure, in their persons or property, any of our citizens in Cuba against 
whom no probable cause of proceeding may exist ; and he demands 
that those who may be charged WLth guilt shall have a fair trial. A 
different course would be sure to rouse a feeling in this country which 
might . defeat the administration of justice towards such persons as 
may be arrested for offending against our laws, and, indeed, might 
render it impracticable to prevent further violation to those laws to an 
extent much more likely to result in peril to Spanish dominion in that 
island. 

But although your duties will be at once arduous and delicate, you 
will bear in mind that they must be such as strictly belong to the con- 
sular character under the law of nations. The Spanish government 
has refused to consider your functions as in any respect diplomatic. 
You will, however, be vigilant in ascertaining who among your coun- 
trymen in your consular district are charged with crimes against the 
sovereignty of Spain. You will see that they have a fair trial ; and if 
in any instance this shall be refused, you will report the fact to the 
department, in order that the Spanish government may be held ac- 
countable. 

Foreigners detected on board an American vessel equipped and 
armed for an invasion of the territory of a friendly nation cannot be 



CASE OF THE BLACK WARRIOR, ETC 347 

allowed to use our flag as a fraud to conceal their purposes, or to pro- 
tect them in the act of invasion. It is true that the 15th article of our 
treaty with Spain of 1795 declares : "It is also agreed that the same 
liberty be extended to persons who are on board a free ship, so that, 
although they be enemies to either party, they shall not be made pris- 
oners or taken out of that free ship, unless they are soldiers and in 
actual service of the enemies." 

This stipulation expressly acknowledges the right of Spain to take 
armed enemies out of United States vessels. Inasmuch, however, as 
this right may be abused, in the event of any abuse of that character 
coming to your knowledge, you will take suitable steps for obtainiug 
redress. 

In general, the protection of governments is due to those only who 
owe them allegiance. If, therefore, any persons not citizens of the 
United States shall have been arrested upon a charge of being con- 
cerned in the expedition, they will have no right to your interposition 
in their behalf. There may, indeed, be cases in which humanity might 
require, and would warrant, the exertion of your personal good offices 
to save the lives of individuals ; still it would not be advisable to in- 
terfere, even to this extent, without a reasonable prospect of success ; 
and the expediency of any interference will demand the exercise of 
your' best discretion. 

I am, sir, &c, 

JOHN M. CLAYTON. 

Robert B. Campbell, 

United States Consul, Havana. 



Mr. Clayton to Mr. Campbell. 

Department of State, 

Washington, June 1, 1850. 

Sir : From various sources of information, I conjecture that the 
Spanish authorities in Cuba, in their excessive zeal to punish the in- 
vaders of that island, and all connected with them, while flushed with 
victory, may possibly forget the difference between crime and the in- 
tention to commit it, and wreak their vengeance on American citizens, 
either native or naturalized, not guilty of any act of invasion or depre- 
dation upon Spanish territory. It is said and believed here, that many 
such were arrested on an island near the coast of Yucatan, called 
Contoy, within the territory of a power having friendly relations with 
the United States. As all the facts are not in our possession, the judg- 
ment we may have formed of the capture, abduction, and punishment 
of these men, may possibly be very erroneous. But let us suppose that 
the men captured on the Mexican island were American citizens, and 
had occupied it intending to invade Cuba, still I cannot recognize the 
right of the Spanish authorities to hang, garote, or shoot them for that 
intention. There was yet a locus penite?itice left for every man of them; 
and they might have returned to the United States, guilty, indeed, of 
a violation of the laws of their own country, but of no law that I am 



348 CASE OF THE BLACK WARRIOR, ETC. 

aware of under which Spain could have punished them. The inten- 
tion to commit crime is not per se crime. Some overt act must accom- 
pany the intent. A design to commit murder is not murder ; nor is it, 
without some attempt to carry it into execution, punishable by the laws 
of man, however guilty the offender may be in foro conscie?itice, and by 
the ordinances of his Creator. The President means to claim for the 
American occupants of the Mexican island, that they were not guilty 
of any crime for which, by the laws of civilized nations, they should 
suffer death. They may have been, and probably were, guilty of 
crimes for which this government ought in good faith to punish them, 
under the act of Congress of the 20th of April, 1818. But supposing 
the facts relating to their capture to be as they are represented to us, 
the President has resolved that the eagle must and shall protect them 
against any punishment but that which the tribunals of their own na- 
tion may award. Tell the Count of Alcoy to send them home, to en- 
counter a punishment which, if they are honorable men, will be worse 
than any he can inflict, in the indignant frowns and denunciations of 
good men in their own country, for an attempt to violate the faith and 
honor of a nation which holds its character for integrity of more value 
and higher worth than all the Antilles together. But warn him in the 
most friendly manner, and in the true spirit of our ancient treaty, that 
if he unjustly sheds one drop of American blood at this exciting period, 
it may cost the two countries a sanguinary war. 

I am exceedingly anxious to ascertain all the facts connected with 
the capture of our citizens on the Mexican island, and their fate. Write 
by every possible opportunity. Keep me well advised of everything 
progressing in Cuba. I learn this morning that there is a rumor afloat 
that more Americans (some say thousands) have landed on the south 
side of Cuba. 

By this time the frigate "Saranac" must have joined the "Albany" 
and " Germantown." They ought to be able to protect our country- 
men who were not guilty of the invasion. 

I am, sir, very respectfully, your obedient servant, 

J. M. CLAYTON. 

Robert B. Campbell, Esq., 

United Slates Consul, Havana. 



Mr. Campbell to Mr. Clayton. 

Consulate of the United States, Havana, 

June 4, 1850, 3, p. m. 

Sir : The American vessels captured at Contoy by the Spanish 
steamer Pizarro have not yet arrived in this port. The prisoners now 
here are still incommunicated, and on trial. 

With great respect and esteem, I have the honor to be, sir, your most 
obedient servant, 

ROBERT B. CAMPBELL. 
Hon. John M. Clayton, 

Secretary of State, Washington City. 



CASE OF THE BLACK WARRIOR, ETC 349 

Mr. Campbell to Mr. Clayton. 

Consulate of the United States, Havana, 

June 8, 1850. 

Sir : The barque Georgiana and brig Susan Loud, captured by the 
general of marines at Contoy, both arrived in this harbor on the morning 
of the 5th instant. They are said to have entered without a national 
or other flag flying. At the time of their arrival the Saranac, Albany, 
and Germantown were in or near the habor. 

The prisoners captured with the barque and brig are still incommu- 
nicated, and the trial progressing. All proceedings under the sum- 
marial or first process being secret, it is impossible to obtain reliable 
information of what is being done by the marine court, before which the 
case is pending. I take it for granted, from the place at which they 
were captured and the circumstances connected with it, that the parties 
and vessels must be released ; although report, confirmed by opinion 
somewhat general, represents that the masters will be executed, and 
the men, generally, sentenced to a punishment not so severe. 

Much excitement prevails in Havana, and great hostility to all Amer- 
icans is manifested and expressed by the Spanish part of the popula- 
tion, I have not myself seen any exhibition of it, but hear much of it 
from different American masters. 

In saying above that the parties and vessels under trial must be re- 
leased, I do not design to be understood as meaning that they will, un- 
der existing circumstances, be given up to our government. The 
whole conversation of the Captain General and the general of marines 
with Captain Randolph and myself is at variance with such a course. 
They appear determined to try all the parties under and by their 
own laws and usages, and to follow out those laws either for acquittal 
or condemnation. I feel it a duty to say this much, (notwithstanding 
the papers already forwarded establish the fact,) lest from any delay of 
energetic action at Washington the lives of some of the prisoners be 
sacrificed to the rigor of this government — a danger which possibly 
can only be averted by immediately demanding, through me or some 
other mode, the delivery of the prisoners. 

I have the honor to be, sir, with great respect and esteem, your most 
obedient servant, 

ROBERT B. CAMPBELL. 

Hon John M. Clayton, 

Secretary of State, Washington City, 

N. B. — The steamer Pizarro sailed last evening from this port in pur- 
suit of an expedition said to have sailed, or that was about to sail, from 
New Orleans. R. B. C. 



Mr. Campbell to Mr. Clayton. 

Consulate of the United States, Havana, 

June 19, 1850. 

Sir : I had the honor to receive, yesterday, by the steamer Ohio 
from New Orleans, your telegraph dispatch of the 1st instant. The 



350 CASE OF THE BLACK WARRIOR, ETC. 

telegraphic report not appearing entirely correct, and feeling an anxious 
desire to arrange the subject of which it treated in a manner least 
offensive to this government, and at the same time fully to carry out 
the views of the President, I called on the Captain General imme- 
diately after its receipt with a faint hope of success, and now report in 
substance the conversation held, and the result of the interview. 

The Captain General was informed that I had received instructions 
from the Secretary of State in relation to the prisoners captured at 
Contoy ; but from my desire to preserve the friendly and amicable re- 
lations existing between the governments of the United States and 
Spain, I deemed it advisable to call personally, and ascertain if an 
amicable arrangement could be made, by which he would either send 
the prisoners to the United States for trial, or deliver them over to me 
to be so sent. 

The Captain General replied that the}? - were being tried here ; that 
he had positive proofs in his possession that the men captured at Con- 
toy formed a part of the expedition of Lopez, and that the capture 
was in every way justifiable, acknowledging at the same time that their 
criminality was not so great as that of the individuals who had landed 
in Cardenas. 

I observed that no man should be tried for the intention to commit a 
crime ; intentions were not cognizable before human courts — they could 
only judge of acts ; and if ever an intention of crime existed with these 
men the crime had not been committed, and the intention may have 
been abandoned. 

The Captain General said that it was more than intention ; that these 
men had already started upon their object ; that they belonged to the 
party who had carried their piratical plans into effect and landed in 
Cardenas, and were clearly criminal, though not to the same extent, 
with that portion that landed at Cardenas, but had commenced to act 
upon their plan, and were awaiting the arrival of reinforcements to 
carry it out, and were guilty of piracy ; and having been found and 
captured by the forces belonging to this government, it vested a perfect 
right to try them for the purpose of arriving at the degree of guilt of 
each individual concerned. I observed that the President of the United 
States does not admit the right of the Spanish government to capture 
these men — they never having been on Spanish territory, could not 
have committed any act violative of Spanish law. Even admitting 
them to be guilty, their guilt was against the laws of the United States ; 
they are amenable to those laws and to no others. 

The Captain General reasserted that these men were pirates, and 
that the laws against pirates held that they could be captured and pun- 
ished wherever found ; that neither himself nor the general of marine 
had the power to deliver up men who are on trial under the laws, and 
that he would not deliver them up, and desired me to inform you that 
the question was one which ought to be left to time. I then stated to 
the Captain General that my instructions to demand that the men be 
sent home were positive, and as he said he would not give up the 
prisoners, although it was unpleasant to do acts not agreeable to him, 
I should feel it a duty to send him a copy of my instructions accompa- 
nied with a demand; to which the Captain General replied, he would 



CASE OF THE BLACK WARRIOR, ETC 351 

not to deliver up the prisoners, nor would he receive any communication 
upon the subject. The government of the United States could make 
their demand upon Mr. Calderon in Washington, or through Mr. Bar- 
ringer at Madrid ; that this government is only a dependency and has 
no diplomatic power. 

After some further conversation, the Captain General agreed to re- 
ceive the communication, but that he would forward it to Mr. Calderon. 
The Captain General repeatedly urged, that as the government of the 
United States had a minister at Madrid, and her Catholic Majest}^ a 
minister at Washington, all questions arising between the two govern- 
ments must be settled through those representatives. 

I have this morning addressed a communication to the Captain Gen- 
eral with an extended extract from your instructions of the 1st instant. 
Owing to the inaccuracy before noticed in the telegraphic dispatch, the 
extract was taken from the instructions as they appeared in a Savan- 
nah paper, as copied from the National Intelligencer. The extract 
would not have been made and sent to the Captain General but for its 
universal publicity. I should have deemed it sufficient to have said 
that I had been instructed by my government. A copy of my commu- 
nication to the Captain General is herewith forwarded. 

From the conversation of yesterday, it is fair to infer that the pris- 
oners will neither be sent home or placed at my disposition. The trial 
will progress to a conclusion, and, if acquitted, the prisoners will prob- 
ably be placed at liberty to get away as they best can. Should con- 
viction take place, it is difficult to say whether they will be pardoned 
or punished. If the right to try, which this government assumes and 
acts upon, be once conceded, we cannot complain of the enforcement 
of a sentence, for we will have yielded everything. 

The Captain General says the prisoners are all well, and I presume 
he is fully informed. Street report, seldom reliable, represents many 
of them as sick and harshly treated. 

I have the honor to be, sir, with great respect and esteem, your most 
obedient servant, 

ROBERT B. CAMPBELL. 

Hon. John M. Clayton, 

Secretary of State, Washington. 



Mr. Campbell to the Count of Alcoij. 

Consulate of the United States, Havana, 

June 19, 1850. 

Sir : I have the honor to communicate to your excellency the fol- 
lowing extract from a letter of instructions addressed to me by the hon- 
orable John M. Clayton, Secretary of State of the United States of 
America : 

" From various sources of information I conjecture that the Spanish 
authorities in Cuba, in their excessive zeal to punish the invaders of 
that island, and all connected with them, while flushed with victory, 
may possible forget the difference between crime and intention to com- 



352 CASE OF THE BLACK WARRIOR, ETC 

mit it, and wreak their vengeance on American citizens, either native or 
naturalized, not guilty of any act of invasion or depredation upon Span- 
ish territory. It is said and believed here that many such were 
arrested on an island near the coast of Yucatan, called Contoy, within 
the territory of a power having friendly relations with the United States. 
As all the facts are not in our possession, the judgment we may have 
formed of the capture, abduction, and punishment of these men may 
possibly be very erroneous. 

" But let us suppose that the men captured on the Mexican island 
were American citizens, and had occupied it intending to invade Cuba, 
still I cannot recognise the right of the Spanish authorities to hang, 
garote, or shoot them for that intention. There was yet a locus peni- 
tentice left for every man of them, and they might have returned to the 
United States guilty, indeed, of a violation of the laws of their own 
country, but of no law, that I am aware of, under which Spain could 
have punished them. The intention to commit crime is not perse crime. 
Some overt act must accompany the intent. A design to commit mur- 
der is not murder, nor is it, without some attempt to carry it into execu- 
tion, punishable by the laws of man, however guilty the offender may 
be inforo conscientia, and by the ordinances of his Creator. 

" The President means to claim for the American occupants of the 
Mexican island that they were not guilty of any crime for which, by 
the laws of civilized nations, they should suffer death, They may have 
been, and probably were, guilty of crimes for which this government 
ought, in good faith, to punish them, under the act of Congress of 20th 
April, 1818 ; but, supposing the facts relating to their capture to be as 
they are represented to us, the President is resolved that the eagle must 
and shall protect them against any punishment but that which the tri- 
bunals of their own nation may award. 

" Tell the Count of Alcoy to send them home to encounter a punish- 
ment, which, if they are honorable men, would be worse than any he 
could inflict, in the indignant frowns and denunciations of good men in 
their own country, for an attempt to violate the faith and honor of a 
nation, which holds its character for integrity of more value and higher 
worth than all the Antilles together ; but warn him in the most friendly 
manner, and in the true spirit of our ancient treaty, that, if he unjustly 
sheds one drop of American blood at this exciting period, it may cost 
the two countries a sanguinary war." 

The foregoing extract will inform your excellency of the opinion of 
the President of the United States in relation to the capture made at or 
near Contoy, and of the requirements of my government that the pris- 
oners be sent to the United States for trial. 

I flatter myself from the long continued harmony which has subsisted 
between our mutual governments, and the importance to each govern- 
ment that the same friendly relations should be preserved unimpaired, 
that your excellency will dispassionately view the subject in all its 
bearings, and spontaneously and promptly comply with the require- 
ment. 

I would respectfully ask from your excellency a reply to this com- 
munication, at as early a period as your convenience may permit. 



CASE OE THE BLACK WARRIOR, ETC 353 

With considerations of great respect and esteem I have the honor to 
be your excellency's most obedient servant, 

ROBERT B. CAMPBELL. 
His Excellency the Count of Alcoy, 

Governor and Captain General 

of the island of Cuba, fye.. fyc, fyc.-, 



Mr. Campbell to Mr. Clayton,-. 
[Extract.] 

. Consulate of the United States, Havana, 

June 19, 1850, 7 o^clock p. m. 

Sir : I have the honor to acknowledge the receipt of your official 
dispatch of the 31&t of May, received by the Georgia, and now de- 
livered. 

The dispatch of the 1st of June having been already acted upon, 
leaves me nothing to do so far as 'the Contoy prisoners are concerned. 
In fact, it became manifest as early as the 24th of May, as you are 
already informed in my communication of the 31st of May, that neither 
myself or your naval officers could do aught for the relief of the pris- 
oners, then as now upon their trial. 

The instructions now received shall be obeyed, as others have been, 
in all things. So far as I can learn, no American citizen has been re- 
cently arrested in the jurisdiction of this consulate, and none in a situa- 
tion to require my present interference. 

In my anxiety to forward an account of my action, under instruc- 
tions of the 1st instant, by the Isabel, which has sailed, it was not pos- 
sible to get the time to notice other parts of those instructions without 
losing the opportunity of that mail. The Falcon, to sail at daylight 
for New Orleans, enables me to prepare duplicates, and further to 
notice and obey. 

You say "the President has resolved that the eagle must and shall 
protect them against any punishment but that which the tribunals of 
their own nation may award." I know the patriotism, the firmness, 
devotion to principle, and the honor of his country's flag which has 
prompted, and will prompt, all the acts of the President ; and con- 
ceding ail these, it is still impossible to carry out his determination. 
He may, and he no doubt will, redress the wrongs heaped upon his 
countrymen, but he cannot recall the sufferings already endured, and 
the punishment already inflicted upon the prisoners by close confine- 
ment, and possibly in chains, first on board a man-of-war, and then in 
the prison cell. 

I have just been informed that Mr. Girau, of New Orleans, has been 
arrested, imprisoned, and incommunicated at Cienfuegos, where, I be- 
lieve, Mr. McLean has an agent. When such arrests are made upon po- 
litical charges the parties have no liberty to communicate by word or 
letter with their friends, and it is accidental if their condition is known. 

23 



354 CASE OF THE BLACK WARRIOR, ETC 

I have the honor to be, sir, with great respect and esteem, your most 
obedient servant, 

ROBERT B. CAMPBELL. 
Hon. John M. Clayton, 

Secretary of Slate, Washington city. 



Mr. Campbell to the Secretary of State. 

[Extract.] 

Consulate of the United States, Havana, 

June 27, 1850. 

Sir : I have nothing of importance to communicate as having oc- 
curred in this consulate since my last. 

The situation of the Contoy prisoners, so far as I can learn, remains 
unchanged. It is believed that the investigation has concluded, and 
copies of all the proceedings sent both to Madrid and Mr. Calderon. 
Report represents a differen3e of opinion as to the propriety of yield- 
ing to your demand of a surrender of the prisoners, as existing among 
the principal officers of this government, and it is presumed no positive 
action will be had upon the demand until positive instructions are re- 
ceived from Madrid, unless the demand is backed by a strong naval 
force. 

The German town was in port for three days, and since yesterday 
morning has been cruising near the harbor. No other American man- 
of-war has arrived. Mr. Girau, of whose arrest you were informed by 
me, has regained his liberty and is now in Havana. As you will re- 
ceive full accounts from Mr. McLean, it is unnecessary for me to trouble 
you with them. 

I yesterday received a letter from a highly respectable merchant at 
Cardenas, dated 24th instant, stating that Mr. Edmund Doyle, a native 
of New York, and Mr. Gustavus Rolando, a native of Charleston, S. 
C, had been taken from their beds at 11 o'clock p. m. of the preceding 
night, tied, and carried off, the former to the house of the captain of 
the partido, and the latter to prison. The arrest was caused, the writer 
states, by Mr. Rolando bursting a cap while preparing his gun for an 
intended shooting excursion to the country on the next day. 

The consul at Matanzas will undoubtedly do all in his power to have 
the parties released, and will inform you of all particulars. 

Is it not the duty of our government to demand and exact full in- 
demnity to American citizens when arrested and imprisoned by a for- 
eign government without cause, or on frivolous pretexts ? 

I have the honor to be, sir, &c, &c, your most obedient servant, 

ROBERT B. CAMPBELL. 

Hon* John M.Clayton, 

Secretary of State. 



CASE OF THE BLACK WARRIOR, ETC 355 

Mr. Clayton to Commodore Morris. 

Department of State, 

Washington, June 29, 1850. 

Sir: The President directs that you proceed, as soon as possible, to 
Havana, in the war steamer Vixen ; that on your arrival there you re- 
quest an audience of the Governor and Captain General of Cuba, rep- 
resenting to him that you bear a message to him from the President of 
the United States, of importance to his country as well as your own. 
On being admitted to his presence, you will demand of him the im- 
mediate release of all the prisoners taken at Contoy, and without the 
Spanish jurisdiction. When making this demand in the name and by 
the authority of the President of the United States, you will repeat to 
the Governor and Captain General of Cuba the assurance heretofore 
conveyed to him and his government, that the government of the United 
States has never ceased to perform every duty enjoined upon it by our 
treaty with Spain, and that it will faithfully Continue in the discharge 
of those duties so long as the peaceful relations of the two countries 
shall continue. That the President expects, in return for this friendly 
disposition and conduct, the strictest observance of the rights of the 
United States and their citizens from Spain; that he recognises no 
right on the part of the Spanish authorities to try and punish the pris- 
oners taken at Contoy ; and that he will view their punishment by the 
authorities of Cuba as an outrage upon the rights of this country. 
Without enlarging upon the grounds taken in making the demand 
through the consul, of which you are rally informed, the President is 
satisfied, from the reports which he has received of the evidence taken 
before Judge Marvin, at Key West, as well as from other information 
which he deems entirely reliable, that the men taken at Contoy had 
embarked to go to Chagres, and if any of them had ever designed to 
invade Cuba, they had repented of that design and abandoned it. 
Under these circumstances, the President cannot consent that the lives 
or liberties of citizens of the United States shall be forfeited, or that 
the question of the truth of the evidence above mentioned shall be 
referred to any foreign tribunal.' 

You will say to the Governor that your mission has been occasioned 
by intelligence that the demand heretofore made by the consul, Mr. 
Campbell, in regard to these prisoners, was refused on the ground, 
among others, that the consul had no diplomatic powers. In reply to 
the demand made by Mr. Campbell, we learn that he was referred to 
the Spanish minister in Washington, Don A. Calderon de la Barca, and 
to the court of Madrid. The views of this government on the whole 
subject have been fully made known to the Spanish minister residing 
at Washington, of which he has doubtless fully advised the govern- 
ment at Madrid and the Captain General of Cuba. This government 
has no reason to suppose that a demand so just and reasonable would 
not now be acceded to by that minister, who is no less distinguished 
among us for his humanity than his justice, and who, while zealously 
on all occasions maintaining and defending the rights of Spain, has 
never shown himself insensible to the importance of preserving the 

/ 



356 CASE OP THE BLACK WARRIOR, ETC 

amicable relations which have so long existed between our respective 
countries. 

As to the reference made by the Governor and Captain General to 
the court of Madrid, you will say to that distinguished functionary, 
that, in the judgment of the President of the United States, were he to 
abandon these prisoners to the consequences of the confinement which 
they must undergo in prison, in such a climate as that of Havana at 
this season of the year, until a demand could be made upon the court 
of Madrid and an answer returned, it would amount to a probable 
sacrifice of the lives of many of them, and a desertion of the duty of 
this government to protect its own citizens. 

The owners of the bark Georgiana and the brig Susan Loud have 
exhibited to this department statements to prove the innocence of the 
captains who chartered those vessels ; and you will inform the Gov- 
ernor and Captain General of Cuba, that this government expects 
those vessels to be returned to their owners, with damages for their 
capture and detention. Those statements confirm the testimony taken 
before Judge Marvin of the innocence of the prisoners of any intention 
to invade Cuba; which testimony has, we learn, been fully communi- 
cated to the Governor and Captain General. 

Should the Captain General refuse to release the prisoners upon your 
demand, you will then inquire fully into the manner in which they 
have been treated; their present and past condition; whether any 
have died, or are sick, and what attention has been paid to them ; 
and what is that evidence upon which the Spanish authorities rely to 
establish their guilt. For this purpose you will demand admittance 
to all the prisoners in the presence of the American consul ; and upon 
your return you will make a full report on all these subjects. 

You will also respectfully request of the Captain General all the 
testimony which he has obtained, to enable this government to prose- 
cute any person or persons in the United States who have been en- 
gaged either in invading Cuba or in getting up an expedition for that 
purpose ; and you will say to him that I am encouraged to make this 
request by Don A. Calderon de la Barca, who assures me that some 
such testimony is in possession of the Spanish authorities, and will be 
cheerfully tendered to this government to enable it to maintain its treaty 
stipulations with Spain. 

I am, sir, very respectfully, your obedient servant, 

JOHN M. CLAYTON, 

Commodore Charles Morris, fyc., 8fc, fyc. 



Mr. Clayton to Mr. Campbell. 

Department of State, 

Washington, June 29, 1850. 

Sir: Your dispatches stating the result of your demands for the 
American prisoners taken on the island of Contoy have been received. 
This will be delivered to you by Commodore Charles Morris, who 
goes to Havana with a special message from the President of the United 



CASE OF THE BLACK WARRIOR, ETC 357 

States to the Governor and Captain General of Cuba, demanding the 
immediate release of the prisoners. As the Governor has objected to 
your blending diplomatic with your consular functions, the President 
has thought proper to transfer the duties, in regard to these prisoners, 
heretofore enjoined upon you, to the Commodore. Should he request 
you, on leave granted for that purpose, you will visit the prisoners with 
him for the purposes indicated in his instructions, and make full report, 
in concurrence with him, to this department. 

I am, sir, very respectfully, your obedient servant, 

JOHN M. CLAYTON. 
Robert B. Campbell, Esq., 

United States Consul, Havana. 



Mr. Campbell to Mr. Clayton. 

[Extracts.] 

Consulate of the United States, Havana, 

July 3, 1850. 
g IR .#*###*# 

There is nothing new in relation to the prisoners that are here. The 
Congress and Germantown are both in port. 

I am convinced in my own mind that no American in Havana has 
been in any way concerned with the late expedition ; but they having 
so long enjoyed the liberty of speech at home, it is possible, nay, prob- 
able, that expressions unacceptable to this government may have been 
used. Others may be correspondents of newspapers in the States, and 
their letters may not always have been unobjectionable to this govern- 
ment. All who have committed the one or the other imprudence may 
be liable to arrest. 

I have the honor to be, sir, with great respect and esteem, your most 
obedient servant, 

ROBERT B. CAMPBELL. 

Hon. John M. Clayton, 

Secretary of State, Washington City. 



[Telegraphic dispatch.] 

Mr. Campbell to Mr. Clayton. 

Havana, July 8, 1850. 

The Congress, Albany, and Germantown are now here ; the Contoy 
prisoners are yet in statu quo: it is expected that they will be released 
in a few days. The American consul asks leave of absence for two 
months, conditioned upon the release of the Contoy prisoners. Mr. John 
Morland, an American, for whose acts I shall hold myself responsible, 



358 CASE OF THE BLACK WARRIOR, ETC 

will discharge the duties of the office during my absence. Please com- 
municate your reply by telegraph to the collector of the port of Charles- 
ton. 

Respectfully, 

ROBT. B. CAMPBELL, U. S. Consul 



Mr. Campbell to Mr. Clayton. 

Consulate of the United States, Havana, 

July 12, 1850. 

Sir: I have the honor to acknowledge the receipt of your dispatch 
of the 29th ultimo, transmitted by Commodore Morris, who arrived in 
this port on the afternoon of the 10th instant. 

The dispatch states, for reasons given, that " the President has 
thought proper to transfer the duties in regard to these prisoners, here- 
tofore enjoined upon you, to the commodore." 

Future interference on my part would be improper. I feel it a duty, 
however, to mention that the summarial proceedings, in relation to 
forty-two of the prisoners, have been concluded ; the final decision was 
given on the 9th, approved on the 10th instant, and published in the 
paper of to-day officially. 

Forty-one of the prisoners are absolved for want of evidence ,* the 
forty-second, called Moore, is also' at liberty, in consequence of a par- 
don previously promised by the general of marine. The cause of the 
promise is left to conjecture. The whole forty-two are, however, sen- 
tenced to two years of hard labor, should they hereafter be found on 
the island of Cuba or Porto Rico. These prisoners are nOw on boaifd the 
Albany, to sail in the morning for Pensacola. Rufus Benson, master, 
and John A. Graffon, mate, of the Georgiana, with Thomas G. Hale, 
mate of the Susan Loud, are detained for further trial; the remainder 
of the two crews, consisting of seven persons, are also detained. The 
vessels, with all their appurtenances, are adjudged to be lawful prizes, 
and confiscated to the use of the Spanish government. The summing 
up of the decision, when rendered in English, is as follows : 

" In view of all that has been stated, the auditor is of opinion that 
your excellency be pleased to declare — 

" 1. Legal, as founded on article 86, treatise 2d, title 5th, of the or- 
dinances of the navy of 1793, the detention at Contoy of the bark 
Georgiana and the brig Susan Loud ; his excellency the commander-in- 
chief of this station and naval forces, on opening and becoming inform- 
ed of the correspondence of the pirates, having made use of the author- 
ity granted by her Majesty for these cases, in the ro}ral order of Janu- 
ary 12, 1803. 

" 2. That, considering the undoubted illegal occupation of the said 
vessels detained at Contoy, it having been superabundantly proved 
that they conveyed men, arms, munitions, and provisions for the pirati- 
cal expedition of Lopez, that they be confiscated, with all their appur- 
tenances, for the benefit of the State. 

" 3. That a nolle prosequi be entered in relation to the forty-two pas- 
sengers already named, setting them at liberty, for the reasons before 



CASE OF THE BLACK WARRIOR, ETC. 359 

stated, with the consent first obtained of their excellencies the Captain 
General of the island and the commander-in-chief of the station, upon 
the particulars before named. • 

"4. That the descriptions of Captain Pendleton and the three sailors 
that proceeded in the Creole, be sent to the Captain General. 

"5, and last. That the summarial proceedings be returned to the 
fiscal, that he may continue the prosecution against the above-named Ben- 
son, GrafFon, and Hale, the before-mentioned sailors continuing detained. 

"Your excellency will, however, determine what you should deem 
most proper. 

"VICENTE DE RAMOS. 

"Havana, July 9, 1850." 

From the foregoing decision you will discover that this government 
has acted with consistence, firmness, and pertinacity. The legality of 
the capture, as also the right to try prisoners, was claimed at the outset. 
There has been no suspension of proceedings, no giving up of prisoners. 
The court gives a final decision in the case of forty-two, and recom- 
mends to the Captain General that they shall not be permitted to land 
or select the vessels in which to return to the States. To carry out 
that recommendation, it is understood that the Captain General, at 
about six a. m. of the morning of the 11th, informed Commodore 
McKeever that the prisoners would be sent to the Congress during the 
morning, and they were sent accordingly. The trial of the remainder, 
I presume, will be prosecuted to conviction or acquittal, in the absence 
of, or under the pressure of, a second demand from the President. 
From the opinions believed to be entertained by the Captain General, 
I do not think he would admit the right of the President to make any 
demand upon him, or be induced to enter into a correspondence directly 
with a foreign government. I may be mistaken, but deem it probable 
that should Commodore Morris make his demand in writing, the sub- 
ject will again be referred to Mr. Calderon, as the diplomatic agent 
of his government. 

In conformity to your suggestion, I have this morning, at the request 
of Commodore Morris, and in his company, seen the forty-two prisoners 
who were tried and liberated, and held conversations with many of 
them. 

They state generally that they never formed, or intended to form, a 
part of an expedition against this or any other country ; that they were 
"bona fide" emigrants for California, and had paid their passage 
money for Chagres ; that while confined they had not suffered for want 
of food, but were ironed for six or more weeks, most of the time in 
double shackles. They make many other statements, with which it is 
unnecessary to trouble you, as their affidavits and protests will be 
made and forwarded to you on their arrival in the States. 

I send, herewith, a translated copy of the entire argument of the 
auditor of marine, and approval of his decision. 

I have the honor to be, sir, with great respect and esteem, your most 
obedient servant, 

ROBERT B. CAMPBELL. 

Hon. John M. Clayton, fyc, $'c, fyc. 



360 CASE OP THE BLACK WARRIOR, ETC. 

Argume?it of the Auditor of Marine. 

• [Official. — Translated from the Diario de Ja Marina.] 

Report of the Auditor of Marine of this station,, approved and agreed 
to by the superior decree of the Admiralty, dated 10th instant, in 
the proceedings carried on consequent to the detention at Contoy of 
the bark Georgiana and hermaphrodite brig Susan Loud, on the 
18th day of May of the present year, with the fifty-two persons 
found on rToard of them. 

Most Excellent Sir : The auditor, with all the care and reflection 
required by their importance, has examined the present summarial 
proceedings commenced by your excellency's order in consequence of 
the communication addressed to you on the 18th of May last from 
Key Contoy, by his excellency the commander-in-chief of this station 
and its naval forces, in the waters of which key, making use of the 
authority granted to her Majesty's fleets and vessels by article 86, 
treatise 2d, title 5th, of the general ordinances of the navy of 1793, he 
detained the bark Georgiana and brig Susan Loud, with every person 
found on board of them, on account of the information and reasons for 
suspicion minutely expressed by his excellency in the aforesaid com- 
munication, a copy of which appears on page 2d, and the original on 
the 208th. The subscriber deems it his duty, before offering to the 
consideration of your excellency the merits brought forth in the proceed- 
ings, and of the documents thereto annexed touching those particulars, 
to bring to mind here, that more than two years since, some Spaniards, 
compelled to seek refuge in the United States — some of them fleeing 
from the punishment they deserved for common crimes, and others to 
escape the investigations of the police — commenced to serve as a pretext, 
or rather were elected by some speculators of that country, to present 
the appearance of a political party that should give a regular shape to 
the project of robbery and pillage they had conceived in their heated 
imaginations. Among the elements required for the success of an 
undertaking of that kind, they relied upon the portion of the adven- 
turers who, in the recent war with Mexico, had tasted the gay life of a 
campaign, which, without many dangers or toils, brought them many 
known advantages. They also relied upon that numerous and almost 
daily immigration from Europe arriving to the neighboring Union, in 
which are found, mixed up with the many unfortunate beings who seek 
shelter and bread by means of the work they cannot find in Europe, 
and many real emigrants for political causes, not a few wretches 
stained with enormous crimes, or accused of scandalous frauds, or at 
least impregnated with all the vices that prepare them to enter into any 
undertaking promising them lucre or gains. 

To prepare public opinion a newspaper was established, written in 
Spanish and English, but of such small dimensions and little merit as 
scarce were the talents and resources of the new propagandists. In 
that newspaper were published, with impudent perseverance, the 
grossest calumnies against the first authorities of the island, supposing 
it weighed down by enormous taxes, and in a state of effervescence 



CASE OF THE BLACK WARRIOR, ETC 361 

and general discontent. These gratuitous and ridiculous accusations, 
and the false charges of oppression, misfortune, and discontent, which 
impelled the island to a desire of being separated from Spain,-soon found 
echo in other newspapers of the neighboring Union. It is known that for 
some time past the most irritating rivalry has been fermenting between 
the provinces of the North and South ; and with the intention of in- 
teresting the provinces of the South, and to stimulate them, they circu- 
lated the malignant clamor that such was the reigning discontent in 
Cuba, that she was only expecting a first occasion, or any aid to con- 
stitute a nucleus, that she might form herself into a republic annexed 
to the United States. With this fantastic plan many deluded men of 
the South have undoubtedly dreamt and believed they had found the 
quickest and easiest means of obtaining over their rivals the preponder- 
ance they aspire to. 

The project of an expedition against Cuba became so general among 
adventurers thirsting for gold, and acquired such consistency and almost 
certainty of an immediate realization, that the illustrous President of the 
United States believed himself obliged to circulate the world-known 
proclamation of the 11th of August, 1849, by which, after bringing to 
mind the duty of observing the faith of treaties, and of preventing any 
aggression on the part of his fellow-citizens against the territories of 
friendly nations, he declared that none of those who should take part 
in the expedition could calculate upon the American government interfering 
in their behalf, to whatever extremity they might find themselves reduced in 
consequence of their conduct and undertaking. 

To this manifestation immediately followed the compelling the ex- 
peditionists assembled on Round island to disperse ; but the speculators 
and other chiefs of the project, although they deferred it to a better 
opportunity, have afterwards boasted of having continued their infa- 
mous preparations with more experience and caution, to the point of 
profusively issuing paper payable in Havana. With this paper, and 
the distribution of property over the whole island, speculations have 
been carried on, and, as it is publicly asserted, some fortunes have 
been made, and large sums offered likewise, payable in Havana. Some 
being well informed, and others deceived with the promise of being 
conveyed to California, assembled, numbering about 550, under the 
command of Don Narciso Lopez at New Orleans : from hence they 
left in three different days upon those same two vessels detained at 
Contoy by his excellency the commander-in-chief of this station and 
its naval forces, and on board of the steamer Creole, the only one that 
succeeded in reaching Cardenas, the soil of which, selected for their 
landing, was stained with the crimes known to all. It is notorious that, 
a few hours after, the expeditionists were compelled to re-embark, 
routed by the small force which, upon the first notice, went to attack 
them- 

That unexampled and unqualified attempt produced a general cry 
of indignation in this faithful Antille, the echo of which has been heard 
in the English chamber and in the Capitol of France. But the audi- 
tor, in his capacity as a magistrate, will set aside these demonstrations, 
to occupy with all the impassability and moderation required by law 
of the facts springing out of the summarial proceedings, and to con- 



362 CASE OF THE BLACK WARRIOR, ETC 

elude afterwards, proposing to your excellency the verdicts which, ac- 
cording to his opinion, be just. 

Of the five parts composing the proceedings, the " fiscal" (prose- 
cuting attorney) has made — thereby showing an example of praise- 
worthy industry — a minute extract, from which it appears that the 
bark named Georgiana Lincumbily, one of the vessels detained at 
Contoy, left New Orleans on the 25th of April of the present year, 
cleared for Chagres with provisions and passengers. On the 27th 
she reached the Belise, and at night received from a fishing boat 
several cases, which were said to contain machinery, and afterwards 
turned out to be munitions and arms. After receiving them she went 
to sea, and in nine or ten days anchored at the island or key of 
Contoy, upon which the passengers twice landed with their arms, were 
engaged in drilling, and afterwards returned to the vessel, which made 
sail for the island of Mujeres, taking on board, for that purpose, a pilot 
from among some fishermen they found. Contrary winds did not per- 
mit them to reach their place of destination, notwithstanding they were 
for several days making efforts against those and the currents ; for which 
reason they returned to Contoy, where, in three or four days after, the 
steamer Creole made her appearance, with an unknown flag, which the 
accused called Cuban. The so-called Colonel or General O'Hara, who 
commanded the people on the Georgiana, went on board the steamer, 
and, after communicating with her, returned to his vessel — the Creole 
starting for the island of Mujeres, from which she came back to Contoy 
in two or three days ; and when she had anchored, one of the chiefs 
went on board the Georgiana, and going upon the quarter-deck, spread 
out the so-called Cuban flag, made a speech to the passengers "upon the 
object of the expedition, and returned to the Creole, from which a short 
time after another boat came with some twenty-five men, discontented 
with the expedition. One of the vessels then took a position alongside 
the other, and the operation of transferring the cases of arms, provisions, 
and coal from the Georgiana to the Creole commenced j and lastly was 
effected that of the passengers, who it is said were some two hundred 
men, well armed and uniformed. 

The hermaphodite brig Susan Loud, which is the other vessel de- 
tained at Contoy, left New Orleans on the 2d of May of the current 
year, cleared for Chagres with provisions and passengers, and having 
laid to when she reached 26 degrees of latitude and 87 longitude, she 
waited some days for the Creole, which, in effect, joined her to receive 
on board all the passengers taken out of New Orleans by the brig, ex- 
cepting the two named John Estille and Joseph Byrnes, who. hid them- 
selves not to go on board the steamer, and both vessels afterwards bent 
their course towards the island of Mujeres, from whence the steamer 
departed for Cardenas and the brig went to Contoy, where she an- 
chored alongside of the Georgiana. 

The steamer Creole also left the port of New Orleans, on the 5th day 
of the said month of May, with about 140 men as passengers, and on 
reaching the Belise received arms, provisions, and munitions, distribu- 
ting them on the day after she left the river, putting on cockades, and 
those who were called chiefs buckling on swords. Two days after this 
they met the Susan Loud, and the shifting of men, by means of the 



CASE OF THE BLACK WARRIOR, ETC 363 

boats of both vessels, took place ; and after having determined upon 
the operations of the brig, as already stated, and the transferring of 
men having been effected, the so-called Colonel Bunche made them a 
speech on the object of the expedition, offering them that the named 
General Lopez would subscribe in their favor a document binding him- 
self to the fulfilment of the offer of eight dollars per month, and, besides, 
four thousand dollars at the termination of the expedition ; and imme- 
diately afterwards, proclamations and the biography of Lopez were 
distributed. In the Georgiana and Susan Loud were found, at the time 
of the -detention, fifty-two persons ; ten of whom belonged to the crews, 
and forty-two who embarked in New Orleans as passengers. Their 
names and surnames, with the expression of class, vessel in which they 
left that port, and number of pages of the summarial proceedings show- 
ing their respective declarations, have been specified in the statement 
accompanying this report, made to avoid the confusion of quotations 
which would necessarily be caused by the multiplicity of declarations 
that have had to be taken from foreigners whose names our copyists 
easily mistake. Of those forty-two passengers, only the individual called 
A. B. Moore has confessed that he embarked, being cognizant of the true 
object of the expedition, of which he formed a part as commissary, 
with the rank of captain ; he has also stated that, on the night previous 
to his embarking on the Creole, he attended a secret meeting, in which 
had been discussed several affairs having connexion with the expedition, 
and among other things about the reinforcements that were immedi- 
ately to follow them under the command of the United States General 
Quitman. The remaining forty-one passengers have maintained, in 
their declarations, that they undertook the voyage in the understanding 
of being conveyed to Chagres and California ; and that, having received 
notice on board that the true intent of the expedition was to attack the 
island of Cuba, they had refused to follow it, for which they were left 
at Contoy to go back to New Orleans. 

From the letters and papers forwarded by his excellency the com- 
mander-in-chief of the fleet, at the time of the detention of the vessels, 
which documents form the fifth part, and appear translated from pages 
216 to 270, both inclusive, and from the papers found by the fiscal in 
the desk of the captain of the brig Susan Loud, Simeon Pendleton, 
(the originals of which are from pages 286 to 301, and the translations 
thereof from pages 274 to 285,) it is seen that in New Orleans, and sev- 
eral other places in the United States, adventurers were enlisted to in- 
vade the island of Cuba. Those papers show that the expeditionists 
formed companies with their respective officers, and that to each one en- 
listed of the class of privates was offered from one to four thousand dol- 
lars at the end of the year of their engagement, besides the eight dollars 
per month, payable from the day of sailing, and to the class of officers 
nineteen to twenty thousand dollars, besides the pay corresponding to 
the respective rank. 

On pages 424, 425, and 428, appear the original testaments of some 
of the expeditionists, translated on pages the reverse of 236, 237, and 
238, by which they bequeath and dispose of the property they expected 
to obtain in Cuba. On page 440 is found original the appointment as 
second lieutenant of cavalry in favor of John Herbert, signed by 



364 CASE OF THE BLACK WARRIOR, ETC. 

A. Hisell, at the so-called headquarters of the liberating army of Cuba, 
by virtue of the authority he believed himself invested with by appoint- 
ment of General Narciso Lopez, commander-in-chief of said army, in 
which, besides expressing that the said Herbert was appointed second 
lieutenant of cavalry, with the pay and honor appertaining to that rank, 
he was authorised to recruit and bring to the city of New Orleans as 
great a number of volunteers for the cavalry service, destined for said 
Hisell's battalion, as he could engage. Those volunteers were to present 
themselves with arms, the value of which would be paid them in Cuba, 
and one thousand dollars besides, or their equivalent in lands at the 
termination of the campaign. The reward to the chiefs would be pro- 
portionate to their rank, in cash or estates, without their losing, in case 
of death, the right to those remunerations which would be religiously 
paid over to their legitimate heirs. In that remarkable document it is 
likewise stated, that besides that remuneration the officers and soldiers 
were to receive, according to their grades, pay equivalent to that re- 
covered by the volunteers of the Mexican campaign, the amount of 
which was to be paid them by the paymaster-general of the army of Cuba, 
where the said funds would be collected, payable from the day of enlistment. 

From page 497 to 504 is found a printed biography of D. Narciso 
Lopez, and on pages 419, 431, and 432, three copies of the proclama- 
tions, likewise printed, which were distributed on board of the steamer 
Creole the day after she left the mouth of the Mississippi. 

That biography or historical notice of D. Narciso Lopez, full of mis- 
representations, and of fact, invented to exalt him as a brave and learned 
hero, full of merit and adorned with all the virtues, exaggerates his 
great influence in the interior of this island, and states that Lopez had 
some years ago formed the resolution of making her independent ; that 
the movement was to have commenced in the summer of 1848, but that 
being discovered and persecuted by the government of this island, 
Lopez had escaped being arrested by embarking on board a vessel 
bound to Bristol; finding himself, says the hero, obliged to take this step 
to avoid the fate which himself and friend would undoubtedly have ex- 
perienced, of being shot in a few days, for which reason he deferred to 
some future time the realization of his project, which he had no doubt 
he could accomplish with the greatest ease when he thought the proper 
time had arrived for making his voyage to Cuba, as his great popularity, 
especially in the central department, insured his triumph, the result of 
which would be the success of his mission — that is, emancipating Cuba 
from the odious yoke, says Lopez, of Spanish tyranny. It is in fact true 
that the Captain General having decreed, about the middle of the year 
1848, the imprisonment of the then General Lopez, who was residing 
in one of the interior towns of the island, he succeeded, abusing the good 
faith and gentlemanly behavior of the governor of Matanzas, in escaping, 
having to give an account of his operations to the military commission 
charged with his trial, as he had effected his flight from that port. 
The proceedings continued, however, against him as a rebel, and the 
sentence pronounced on the 23d of April, 1849, condemning him to loss 
of office, rank and crosses, saw the public light in all the newspapers 
of this capital. Lopez, as was to be expected, having taken refuge in 
the United States, increased the number of the anarchists, and, forget- 



CASE OP THE BLACK WARRIOR, ETC 365 

ting, to his eternal shame, all that he owed to Spain from his most tender 
years, offered himself, or rather made himself, the chief of the expedi- 
tion, the preparations for which caused the already mentioned procla- 
mation or manifesto of the 11th of August of the same year, 1849, to 
the publication of which immediately followed the forcible dispersion of 
the wretches assembled upon Round island. 

It is notorious that the press of all colors in tke United States, and 
the newspapers of this capital, have more or less extensively spoken, 
from the beginning of April of this year, of the second expedition to in- 
vade Cuba, or, be it, that which effected a landing in Cardenas ; it being 
remarkable that there appear in it, as well by the revelations of the 
original documents, which are of indisputable authenticity, accompany- 
ing the summarial proceedings in the said fifth part thereof, as by the 
newspapers, the names of the North Americans, General Quitman, 
Judge Pinkney Smith, ex-senator Henderson, the editors Sigur, O' Sulli- 
van, O'Hara, Pickett, and others who need not be specified, when those 
named are sufficient to prove that that expedition has been set on foot, 
favored by, and composed of, not only of low men, but also of men 
whose social position, it appears natural, should keep them away from 
having connexion with such undertakings ; and it is most remarkable 
and unexampled that persons of that kind should find a civilized country 
in the streets of which they can appear with their heads high, with 
offices and rank that in. no enlightened country can hold even those 
who are only supected of such crimes. 

From the official communication of his excellency the Governor and 
Captain General of this island, and the accompanying copy thereof, on 
pages 316 to 321, both inclusive, appears proved, in the legal form suf- 
ficient for proceedings of this nature, the consummation of the attempt 
on the 19th day of May last, or, be it, the tissue of crimes committed by 
D. Narciso Lopez, from half-past three of the morning on which he 
and his followers invaded the port and town of Cardenas, belonging 
to the territory of this ever faithful island. They forcibly dispossessed 
and imprisoned the chief authority of the place, burnt the house in 
which that authority made a heroic resistance, robbed the public funds 
they could lay their "hands upon, invited the inhabitants to rebel, and 
spilt innocent blood, and finally they hoisted up in the public square an 
unknown flag. They likewise showed a decided intention of continuing 
in the exercise of their crimes, by going into the interior of the country, 
which they did not succeed in realizing, because, as before stated, a 
few hours after, on the same day, the 19th, they were charged upon 
and routed by a handful of brave men, who compelled them to re- 
embark. 

That attempt — unexampled in history, on account of the exceptional 
circumstances attending it — of the actors having assembled, and the 
means been prepared for its perpetration in a friendly country, leaving 
one of its principal ports, to attack treacherously, cautiously, and se- 
cretly, the territory of a nation then, as now, at peace with all the 
world — has already been unanimously qualified by the press of all col- 
ors, with only some few exceptions, such as the Sun, the Delta, and 
others, which, for their interests and private views, have confronted 
the shame of constituting themselves the champions and defenders of 



366 CASE OF THE BLACK WARRIOR, ETC. 

Lopez's piratical expedition. That name has been given to it in the 
British Parliament, by one of the most distinguished writers and jurists 
of the House of Lords, and is the same qualification made by the Presi- 
dent of the United States, when he issued the before-mentioned procla- 
mation of the 11th August; because, only by considering the organizers 
of the armed expedition it refers to, as pirates, could have been declared 
that none of the persons connected with it should expect the interference 
of the government of the United States in their behalf, however great 
the extremity they might be reduced to in consequence of their conduct 
and undertaking, which, in fewer words, means that the chief of the 
State put beyond the pale of law any inhabitant of the Union connect- 
ing himself with the project. 

The auditor, according to the strictest principles of the laws of na- 
tions, also qualifies the attempt of Lopez as a piratical act, with new 
and aggravating circumstances, of such a nature that they add a new 
species to the catalogue of piracy. A pirate, by common law, is he 
who traverses the seas by his own authority, without a known flag, 
committing all sorts of misdemeanors by force of arms, in peace or in 
war, attacking all the vessels he meets, without distinction or difference 
of flags. The buccaneers, who undoubtedly were pirates, and were as 
such treated, increased piracy with their particular class, in the same 
manner as Lopez has done it with his expedition against Cuba. 

The buccaneers did not merely commit robberies and infamous acts 
upon the vessels they met on the seas, but extended their acts to attack- 
ing some ports and coasts, which they plundered, set fire to, and 
destroyed in several ways. The pirates and buccaneers never at- 
tempted to palliate their iniquity with political pretexts, nor aspired to 
obtaining a great name or fame ; nor had they newspapers to defend 
them, nor general and judges that would so degrade themselves as to 
be connected with them, wishing to share their pillage and robbery : all 
these are peculiarities of the so-called expedition of Lopez, which, 
doubtless, will constitute an era in history, inasmuch as it has been 
organized in a friendly country, leaving one of its ports to go and burn, 
rob and kill, upon the territory of another friendly nation, at the same 
time that there was flying on the building of a newspaper office estab- 
lished in one of the most public streets of New York, hoisted on a pole, 
a painted piece of bunting, with emblems and colors, to which was 
given the name of Cuban flag, and was the same taken by Lopez to 
Cardenas. In the punishment of that new species of piracy, invented 
by a few speculators of our neighboring republic, and headed by Lopez, 
are interested, at the same time as Spain, all other nations of the world, 
without distinction of hemispheres or flags ; for, in the same manner 
that Spain was attacked, on the 19th of May, in the port and town of 
Cardenas, any other day, under equal or similar pretexts, might England 
be attacked in Canada or the Barbadoes ; France, in Guadalupe or 
Martinique ; Holland, in Curacoa ; Denmark, in St. Thomas ; Swe- 
den, in St. Bartholomew ; and the Spanish American republics in any 
parts of their territories ; and, in one word, all the other nations 
without exception. It is not necessary to establish that it exclu- 
sively belongs to the jurisdiction of marine courts all that relates to 
orivateering, prizes oirates, mutiny, and any other crime committed on 



CASE OF THE BLACK WARRIOR, ETC 367 

the seas ; and as the crime, or rather the combination of crimes, 
perpetrated in Cardenas, unquestionably constitute piracy, the ves- 
sels and persons detained at Contoy must be tried by the marine 
court, and agreeably to the dispositions of the ordinances of the navy, 
and subsequent laws. In conformity, therefore, to the existing sove- 
reign dispositions, the proceedings which are now under consideration 
must be divided into two parts, entirely distinct in themselves — one of 
them to embrace the condemnation or acquittal of the vessels, having 
beforehand effected the most necessary investigations to prove their 
occupation, or place they came from, which, in conformity to article 
13th of the royal order of 20th June, 180J, has to be decided by the 
military courts of the navy, and therefore by that of your excellency, 
with the subscribing auditor, who constitute the court for this station. 
The persons must be tried by the forms established by the royal order 
of the 8th January, 1830, in all that they can be adapted to the present 
case. To decide of the fate of the Georgiana and Susan Loud, there 
exist more facts than are needed in the summarial proceedings ; for it 
appears evidently established that those vessels, although they cleared 
from New Orleans with the apparent object of conveying passengers 
to Chagres, were engaged in carrying men, arms, provisions, and mu- 
nitions to attack the island of Cuba, as was effected by the landing of 
Lopez and some five hundred of his followers in Cardenas, where they 
perpetrated the crimes already related, and to which place they arrived 
in the steamer Creole. This vessel was dispatched with the same 
pretext as those mentioned before, there appearing and being manifest 
that, although they left New Orleans on different days, they held com- 
munication with one another on the high seas, and at Contoy transferred 
arms and men from one to the other, and acted in a manner that shows 
that they had made a previous combination, and appointed as a place 
of rendezvous the island of Mujeres, which the Georgiana could not 
reach, in spite of her repeated efforts, having been prevented by cur- 
rents and contrary winds ; for which reason she had to go back to Con- 
toy, to which place the Creole went for the arms and men she had 
taken out of New Orleans, and which was the same place where the 
Susan Loud afterwards joined them. Although what is above stated 
is sufficient to prove the true intent of the voyage of these vessels, it 
will be well to copy here the original document of page 295, translated 
on page 283, which says : 

" This expedition has been perfectly combined, as they have given 
us tickets for Chagres, so that in case of search by the authorities they 
may not do anything to us ; we took on board of our bark, at the mouth 
of the Mississippi, a quantity of arms, and being at sea, a revenue 
vessel passed by our side at night ; but they knew what we were, for all 
the world is in favor of the expedition ; we are armed with musket, 
short sword, and revolving pistols — the officers in the same manner ; 
we are confident of success. General Lopez is at the head of five 
hundred of us, and if we come out victorious we shall receive our 
four thousand dollars, and live in peace." 

It appears, also, that the Susan and Creole recognised each other 
by signals, which necessarily must have been previously agreed upon 



368 CASE OP THE BLACK WARRIOR, ETC. 

as also that, during the night, they sailed together, keeping lights tip 
to preserve them together ; and above all, as it appears, that in the 
log-books of one and the other vessel no remarks have been made 
which in any manner could excuse the faults already observed ; and as 
there does not appear that the Georgiana had the proper license to ship 
the arms and munitions she received at the Belise, there is no doubt 
left that, according to article 28tb, and others agreeing with it, of the 
royal order of June 20, 1801, they must be declared by your excel- 
lency good prizes, and confiscated to the benefit of the State, with all 
their apparel, sails, instruments, boats, provisions, the rest of the arms 
found on board, and every other thing belonging to the same, giving an 
account of the same to her Majesty, that they may be applied to the 
uses her Majesty should deem best, unless, to avoid the loss or 
damage they might suffer before the sovereign's resolution can de- 
scend, your excellency should prefer to sell them at auction, or in any 
manner employ them for the benefit of the State. The auditor having 
concluded, with the statement in the preceding paragraph, touching the 
vessels detained at Contoy, passes now to occupy himself with the 
forty-two passengers who were found on them, named Edward B. 
Davis, John Finch, William Penton, David Flinger Smith, James M. 
Gowan, John W. Winter, John Gibbs, Thomas M. Armstrong, William 
B. Smith, William M'Intosh, James Folger, John Cranin, Levi Brown, 
Alexander Miller, Henry Stevens, Wm. S. Lake, James M. Martin, 
Henry Smith, John Estell, Joseph Byrnes, Antonio Francisco, Finny 
S. Welsh, Phill O'Connor, Alexander M. Snelly, Joseph Reed, A. 
B. Moore, Charles N. Paris, William J. Holland, James O'Donnell. 
Arthur M'Guire, John M. Coolson, Joel D. Hoag, Stephen Havenstrow, 
John L. Carter, Allen P. Coolson, James Bannon, Wm. L. Hardy, 
John Blackstone, Chas. B. Matthews, James Japley, George M. 
M'Daniel, William Brown. The first seventeen left New Orleans in 
the Georgiana, the eight following in the Susan Loud, and the remain- 
ing seventeen in the steamer Creole. Of all these, A. B. Moore alone 
has clearly confessed his participation in the undertaking; but taking 
into consideration the statement of his excellency the commander-in- 
chief of the station, in his communication dated the 5th instant, at the 
margin of which this report commences, it is necessary that your ex- 
cellency should confirm the pardon expressly granted to Moore, in the 
name of her Majesty, without entering into any observations which are 
foreign to this place. 

Whether the statements of the remaining forty-one passengers be 
true or false, neither in the summarial proceedings, nor elevating those 
to a prosecution, nor carrying them arbitrarily to a court where a great 
extension might be given to the evidence, could anything be obtained 
that would contradict their assertions, or that would establish that only 
fear for the consequences of the crimes that were about to be commit- 
ted in Cardenas, or the want of room in the Creole to convey them, 
was what detained them at Contoy. The fact proved and undoubted 
is, that they remained many leagues from our coast; there appearing 
also, from the documents numbered 12, 15, 28, 55, 60, and 63, the 
translations of which are shown on pages 226, 227, 240, 257, 260, and 
263, that claims were brought against Lopez for deception ; that disa- 



CASE OF THE BLACK WARRIOR, ETC 369 

greements had occurred among the expeditionists, and, in one word, 
that the chief, Lopez, placed the Georgiana at the disposition of all the 
disaffected of the expedition, that they might return to New Orleans. 
What is moral conviction for a man is not enough for a judge. With- 
out offending common sense, and according to all the rules of reason- 
ing, it may be supposed that when those men engaged or enlisted in 
the United States, they must have known, if not positively, at least by 
inference, that the object of the expedition was not lawful or permitted, 
they being conveyed gratis, and offered a remuneration which did not 
appear proportionate to any undertaking not offering great risks. The 
greater part of these passengers can write ; the avidity with which the 
North American people read the public papers is well known ; and it is 
notorious that long before the expedition was carried into effect, the 
project was spoken of, and especially in the principal southern towns, 
where the majority of those people were recruited. All this, however, 
is nothing but opinion more or less founded ; so that in the conviction 
that nothing will be obtained by elevating the summarial proceedings 
to a prosecution, the auditor deems it strictly just that a ' : nolle prosequi" 
shall be entered in relation to the passengers, and that they be set at 
liberty. 

Be it, however, permitted to the subscriber, before going further, to 
express his humble opinion to your excellency that it would not be pru- 
dent, under the present circumstances, to allow those men to walk the 
streets and select the vessel and moment for returning to the United 
States. It will not be out of place to draw your excellency's attention 
to the fact that such mercenary beings, disposed to enter into and form 
part of any undertaking without stopping to examine into its morality, 
it is to be presumed, would easily increase the number of a new expe- 
dition that might reckon upon more resources and a larger number ; and 
although in the private opinion of the auditor such a new and reinforced 
expedition would have no other result but that of .giving a greater oc- 
cupation to those whose duty it would be to try and punish them, the 
government, however, cannot neglect, it being their duty, adopting all 
the precautions which their wisdom may suggest for preserving order 
and public tranquility, such as that of forbidding all those concerned 
in this affair from ever returning to the territory of this island and that 
of Puerto Rico, in the understanding that in case of non-compliance 
they will be condemned to public works for two years ; to which end 
then; " description" may be taken for the information of the govern- 
ment. But nothing of this belongs to \'our excellency's jurisdiction ; the 
auditor thinks that your excellency should propose to the superior chief 
of the station to have an understanding with the principal civil an d 
military authority of the island upon the means of conveying those men, 
and the precautions with which they are to be permitted to return to 
the Union, delivering, upon that being effected, their money and other 
private property- to them belonging, for, as stated before, the vessels 
and their appurtenances, together with the captured provisions and 
arms, must remain confiscated for the benefit of the .State, of which 
duty the fiscal may be put in charge, to have it effected with nil possi- 
ble dispatch bv means oi'a verbal investigation. 
24 



370 CASE OF THE BLACK WARRIOR, ETC 

The captain that was of the Susan Loud, and the three sailors that 
proceeded to Cardenas in the Creole, have been declared as beyond the 
pale of the law by the Captain General's edict of the 19th of May last; 
therefore it will be proper to furnish his excellency the Captain General 
the descriptions of those individuals, as they appear upon the crew- 
lists of the vessels, that the law may be carried into effect in case that 
their persons be obtained. 

The subscriber intentionally abstains, himself, from entering into ob- 
servations and particulars of any kind respecting Rufus Benson, master 
of the Georgiana, and her mate, Jos. A. Graffon, and the sailors belong- 
ing to the same, Nathan Dawson, Robert J. Burefy, James Nowyes ; the 
mate of the Susan Loud, Thomas G. Hale, and sailors of the same, 
James Stewart, Daniel Blair, John Hamer, Andrew Jinkhantz — as the 
proceedings respecting Benson, Graffon, and Hale, must continue ac- 
cording to the form prescribed in the royal order of the 8th of January, 
1830 ; to which end the summarial proceedings will return to the fiscal, 
as soon as what has been determined before shall have been effected, 
the sailors continuing detained until a further determination. 

Recapitulating : In view of all that has been stated, the auditor is 
of opinion that your excellency do declare — 1st. The detention of the 
bark Georgiana and brig Susan Loud, at Contoy, legal, it being 
founded on article 86, treaties 2, tit. 5, of the royal naval ordinances of 
1793 ; his excellency the commander-in-chief of this station and of the 
naval forces having made use, on opening and becoming informed of 
the correspondence of the pirates, of the authority granted by her Ma- 
jesty for these cases in the royal order of the 12th of January, 1803. 
2d. That, considering the undoubted illegal occupation of the said ves- 
sels, detained at Contoy — it having been superabundantly proved that 
they conveyed men, arms, munitions, and provisions for the piratical 
expedition of Lopez — they be confiscated, with all their appurtenances, 
for the benefit of the state. 3d. That a "nolle prosequi" be entered 
in relation to the forty-two passengers already named, setting them at 
liberty for the reasons before stated, with the consent first obtained of 
their excellencies the Captain General and commander-in-chief of the 
station as to the particulars before named. 4th. That the descriptions 
of Captain Pendleton and the three sailors that proceeded in the Creole 
be sent to the Captain General. 5th, and last. That the summarial 
proceedings bs returned to the "fiscal," that he may continue the pros- 
ecution against the above-named Benson, Graffon, and Hale, the 
before-mentioned sailors continuing detained. 

Your excellency will, however, determine what you shall deem most 
proper. 

Havana, July 9, 1850. 

Most Excellent Sir, Vicente de Ramos : I conform to it, and let 
it be fulfilled, the forty-two passengers named in the proceeding report 
remaining at liberty, placing them at the disposition of their excellen- 
cies the Captain General and commander-in-chief of this station for 
the purpose expressed in the same report ; that portion of which re- 
lating to it will be conveyed in a polite communication to those author- 
ities ; the fiscal being charged with the delivery of the effects and 
property in the form specified by the auditor ; and as such fiscal, at- 



CASE OF THE BLACK WARRIOR, ETC -371 

tending and being present, to the delivery of the forty-two individuals, 
stating in the said proceedings the manner in which it has been effected. 
And issue a correct certificate of the report of the auditor and of this 
decree, for their insertion in the official part of the Diario de la Marina, 
in three conaecutive numbers, returning the proceedings to the said 
" fiscal" for the fulfilment of the part appertaining to him, after hav- 
ing passed through the secretary's office the communications and certi- 
ficate ordained. " TABLADA. 

Note. — That part of the preceding superior decree having relation 
to the secretary's office has been complied with. (Date as above.) 

JOSE ANTONIO NIRTO. 



Mr. Campbell to Mr. Clayton. 

Consulate of the United States, Havana, 

July 16, 1850. 

Sir: The captain, two mates, and seven seamen, detained by this 
government, have not yet been relieved from incommunication ; but 
permission being granted to Commodore Morris for him and my- 
self to see the prisoners, we first called at the military hospital at 
10 J a, m. of this. day to see Captain Benson, who had been placed in 
the hospital, as was understood, on account of his indisposition. We 
found him in a room with grated windows ; and had the pain and mor- 
tification that to discover that his intellect was entirely destroyed, and he 
had become a raving maniac. The madness is manifestly real, and 
not assumed. The acts and words of a madman it would be idle to 
report, and I therefore pass them unnoticed. 

Being informed by the fiscal that our visit to the prisoners was only 
permittedfrom courtesy, it would be expected of the commodore and my- 
self to ask no questions in relation to the trial or circumstances attendant 
upon their capture. We thus found ourselves limited to the questions of 
their health, treatment, and whether or not all were alive. They an- 
swered that all were well except the captain and one man who had 
been sent to the hospital ; that they had been well treated, and none 
were dead. We understood from the officers that the seaman in the 
hospital was convalescent. The questions were asked and answers 
given in the presence of the fiscal, interpreter of the captain of the 
port, and other Spanish officers. 

After leaving the Soberano, 74, on which were the two mates and 
six seamen, Commodore Morris and myself called on the general of 
marine. After some observations of courtesy, &c, the commodore 
inquired of the general of marine when he thought the trial of the 
prisoners would terminate. He answered, in about ten days. The 
commodore stated that he was about to leave the port, and it would be 
well to give the prisoners, when released, in charge to the consul. The 
general replied that he could not do so, for the parties would then be 
at full liberty to select the time and mode of leaving. I observed to 
the general of marine that certain forms were necessary to enable sail- 
ors and others to depart ; I therefore hoped he would deliver to them 



372 CASE OF THE BLACK WARRIOR, ETC 

such papers as would remove all difficulties at their departure. This 
he promised to do. 

The answer of the general of marine to Commodore Morris furnishes 
additional evidence that this government is determined exclusively to 
direct everything connected with the capture, and that •the prisoners' 
shall not have even the appearance of being given up to any official of 
our government. 

My feelings have been so harassed and wounded by the melancholy 
and hopeless condition of Captain Benson, and the conviction that, 
with the strongest desires, I have been impotent to save him from so 
sad and cruel a fate, that I hope I shall be excused by the President 
should I for a time visit the States, even in advance of permission being 
received. A few days, however, may lessen the present intensity of 
feeling. Should they not, I shall leave by an early opportunity. 

I have the honor to be, sir, with great respect and esteem, your most 
obedient servant, 

ROBERT B. CAMPBELL. 

Hon. John M. Clayton, 

Secretary of State, Washington city. 



Mr. Campbell to Mr. Clayton. , 
[Extract.] 

Consulate of the United States, Havana, 

July 19, 1850. 
gj R .######* 

The trial of the Contoy prisoners is, I suppose, being proceeded 
with. Captain Benson, of the Georgiana, it is believed has been re- 
moved to a lunatic hospital. I feel a deep interest in his fate, and very 
much fear that his mind cannot be restored so long as he continues in 
a situation where he never hears his native language or sees a familiar 
face. Should anything occur by which, officially or personally, I 
can in any manner serve him, the contingence will be immediately 
availed of. 

It is believed that the Georgiana and Susan Loud have been hauled 
into a dock, and are unloading preparatory to taking in cargoes of 
timber for Spain. 

With great respect and esteem, I have the honor to be, sir, your 
most obedient servant, 

ROBERT B. CAMPBELL. 

Hon. John M. Clayton, 

Secretary of State, Washington city. 



Commodore Morris to Mr. Clayton. 

Washington, July 23, 1850. 

Sir : I have the honor to report that, in compliance with your in- 
structions of the 29th ultimo, I embarked in the United States steamer 



CASE OF THE BLACK WARRIOR, ETC 373 

Vixen on the 1st and arrived at Havana on the 10th instant. I imme- 
diately addressed a note to the Governor and Captain General of Cuba, 
requesting an audience, as directed by your letter, and received a ver- 
bal message that he would receive me the next day at noon. 

I found in the harbor of Havana the United States frigate Congress, 
with Commodore McKeever, and the Albany, Commander Randolph. 
From Commodore McKeever I learned that he had held several con- 
versations with the Captain General respecting the persons captured at 
Contoy, and had been assured by him that a part of them would be 
released before the 12th of the month. 

Early in the morning alter my arrival, Commodore McKeever re- 
ceived a note from the Captain General, dated the 10th, informing him 
that forty-two of those persons had been liberated, and would be sent 
to any vessel that he might designate. A translation of this note, ac- 
companied by a list of the men, was sent to me by Commodore Mc- 
Keever for my directions. He was instructed to receive them on board 
the Congress, and then to transfer them to the Albany ; and Comman- 
der Randolph was directed to receive them. Copies of these com- 
munications are annexed, and numbered 1, 2, 3, and 4. 

At noon of the same day, I waited upon the Governor and Captain 
General, taking with me Mr. Forelhouse, a gentleman from New Or- 
leans, as an interpreter. When the main object of my visit and the 
authority under which I was to make communications to him were 
stated, the Captain General declined receiving any communication as 
an official one from the government of the United States, because he 
had no authority to act in any manner upon diplomatic subjects. _ At 
the same time he expressed his readiness to receive any communica- 
tions I might make in my official character of an officer of the navy, 
and to give to them the same consideration as though they had ema- 
nated from a higher authority. 

In reply, he was informed that I could only act in conformity with 
my instructions, and that any communications which I might make 
must be made as under the authority, and by the direction, of the Pres- 
ident of the United States. The consideration and weight which he 
might give to these communications must, of course, depend upon his 
own views of his duty. 

When declining to receive the communications in the manner indi- 
cated, he expressed the highest personal and official respect for the 
President, and his entire confidence in the intentions of the President to 
cause all the obligations which were due to Spain from the United 
States to be faithfully performed. 

In the course of the conversation which followed, all the communi- 
cations required by my instructions were made to the Captain General, 
with the exception of a formal demand for the captured persons who 
were still detained. I was induced to defer this until I could com- 
mune with those who had been released. 

The Captain General had stated, in the course of the conversation, 
that the persons who were still detained were beyond his lawful con- 
trol until the judicial proceedings upon them, which were then in pro- 
gress, should be completed. 

The interview was closed after he had again stated that he could 



374 CASE OF THE BLACK WARRIOR, ETC. 

not receive the communications which I had made as official communi- 
cations from the government of the United States, and I had replied 
that I had made them as from, and by the authority of, the President. 

On the morning of the 12th instant the United States consul went 
with me to the Albany, where we saw and conversed with the forty- 
two persons who had been liberated the day before. From the state- 
ment of these persons, it appeared that, from the time of their capture 
until quite recently, they had been more or less confined by leg-shackles, 
and generally on the lower gun-deck of the ship-of-the-line, the Sobe- 
rano. In other respects none of them made any complaint to me of 
gross ill-treatment. None of their original number had died, but were 
all present. When any had been sick, they had been sent to the hos- 
pital until they were well enough to return to the ship. All of them 
appeared to be in good health, excepting the one who returned from the 
hospital the day they were liberated. 

Two of them complained of a loss of money and clothing, and one 
of a passage ticket to Chagres. I subsequently addressed a note to the 
general of the marine on this subject, a copy of which, and of his an- 
swer, are annexed, and numbered 5, 6, and 7. 

The Albany sailed for Pensacola, with these men, on the morning of 
the 13th instant, under orders, of which a copy is annexed and num- 
bered 8. 

On the 15th instant I had another interview with the Governor and 
Captain General, when I made the formal demand required by my in- 
structions for tne ten men who were still detained of those who had 
been captured at Contoy. 

The Captain General, in reply, stated that these individuals were now 
in the possession and under the control of the judicial tribunals, and 
that until those tribunals should decide on the guilt or innocence of 
the parties, he could not lawfully interfere in any manner with them. 
He stated, however, that the master of the Georgiana, the mate of that 
vessel, and the mate of the Susan Loud, were all that were upon trial, 
and that the seamen were only detained as witnesses. He concluded 
by repeating assurances of his great respect for the President of the 
United States, and of his own desire to preserve the most friendly rela- 
tions between Spain and the United States, by all means that were con- 
sistent with his duties to his own country. 

By an arrangement with the general of marine, the United States 
consul and myself visited, on the morning of the 16th, all the persons 
who are still detained. 

We were informed that the master of the Georgiana, Mr. Benson, 
had been sent to the hospital about the 14th instant, in consequence of 
symptoms of insanity. We found him there, suffering from mania of a 
violent character. 

Although he recognised the consul and a Spanish officer who accom- 
panied us, he was evidently unable to comprehend, and did not notice 
anything which was said to him. His mind appeared to dwell upon 
Lopez, whom he considered to be with us, and on whom he was fre- 
quently calling; and upon his Bible, to which he often referred as 
being in his possession. Nothing which he said gave any other indica- 
tions of the cause of his insanity. The chief of the hospital promised 



CASE OF THE BLACK WARRIOR, ETC 375 

to have him placed in the ward for the insane, and that every attention 
should be given to alleviate his unfortunate condition. 

The two mates and the seamen, excepting one at the hospital, were 
on board of the Soberano. On being questioned as to the treatment 
they had received, they said they had no complaint to make ; that 
when any of them had been sick, they had been sent to the hospital 
until they were well enough to return on board ; and that none of them 
had died. 

The permission to visit the master and mates was granted to us as 
a favor ; for, by the Spanish laws, those persons were not allowed, in 
the existing stage of their trials, to communicate with any but the offi- 
cers of the law. We were in consequence requested not to question 
them on the subject of their capture and trial, but every liberty was 
granted to question them respecting their condition and treatment. 

We were also authorized to inform the seamen that they were only 
detained as witnesses, and would be released as soon as their testimony 
should be closed. 

The " dictamen" of the Auditor of War and Navy, which decided 
the case of the two captured vessels, Susan Loud and Georgiana, and 
of the passengers who were taken with them, was first published on 
the 12th instant, and again on the 13th and 14th. I annex one of the 
newspapers which contain it. 

It appears by this decision that the authorities of Cuba have con- 
sidered the capture of those vessels authorized by the law of nations, 
and have regulated all their proceedings accordingly. 

On being questioned, the fiscal of the marine said that the evidence 
to be used on the pending trials would be the testimony of the seamen, 
the declarations of the parties, and the. papers found in the vessels. I 
was also assured that those trials would be closed without other delay 
than was due to their great importance. 

Believing that my longer stay at Havana could not be productive of 
any advantage, I embarked and sailed in the Vixen on the afternoon of 
the 16th instant. 

With much respect, I have the honor to be your obedient servant, 

CHAS. MORRIS, 

United States Navy. 

Hon. John M. Clayton, 

Secretary of State. 



No. 1. 



United States Frigate Congress, 

Havana, July 11, 1850. 

Sir : I have the honor to enclose, herewith, the translation of a com- 
munication of yesterday's date, which I have just received from his 
excellency the Governor and Captain General of Cuba, and request 
your instructions thereon. 

I am, sir, very respectfully, your obedient servant, 

J. McKEEVER. 



376 CASE OF THE BLACK WARRIOR. ETC 

No. 2. 

[Translation.] 

On the 7th instant, when you paid me the attention of calling to take 
leave of me before sailing, I expressed the regret which your departure 
occasioned me, as well on account of the personal esteem I have for 
you, as because of an announcement which had already been made 
known to me by the most excellent commander general of marine, to 
the effect that, by virtue of summary proceedings held in the tribunal 
of the garrison, such persons, out of the whole number of those taken 
at Contoy, who it appears were only passengers on board of the vessels, 
would soon be declared free ; and I had intended to ask you, if it were 
convenient, to order that one of the vessels under your command should 
receive on board those individuals who, at the time of receiving their 
liberty, (under the restriction, however, that they should not remain on 
the island, which was necessary, ibr many reasons,) should desire to go 
to the United States ; and as you immediately consented to delay your 
departure for four days, which was the time I thought would still be 
necessary for the tribunal to issue its declaration, with a view of your 
receiving those who might choose to embark in your vessels, if in that 
time they should be liberated, I now inform you that the moment has 
arrived in which a decision has been made in regard to the individuals 
named in the enclosed list, and who, on being asked, have voluntarily 
said their wish was to return to the country from which they came. 

Under these circumstances, I hope you will be pleased to inform me 
if you are disposed to receive them, in order that, to-morrow, I may 
give proper orders in relation to. the subject. 

I avail myself of this occasion to renew to you the assurances of 
faithful and special esteem as a man and worthy officer in the navy of 
a nation with which Spain always maintains good relations. 

AL CONDE DE ALCOY. 

Havana, July 10, 1850. 



List of the individuals detained on board her Majesty' )s ship-of-the line " So- 
beranoT who, on being placed at liberty, expressed a desire to return to the 

United States. 

A. B. Moore David Kingler Smith 

William J. Holland James M. Gowan 

Charles N. Paris John W. Winter 

James O'Donnell John Gibbs 

Arthur Maguire Thomas M. Armstrong 

John Atwalson William B. Smith 

Joel D. Hoag Wm. M. Mcintosh 

Stephen Havenstown James Fogler 

John L. Carter John Cronin 

Allen P. Coalson, (sick in Levi Browne 

hospital.) Alexander Miller 



CASE OF THE BLACK WARRIOR, ETC 377 

James Bennon Henry Stevens 

William L. Hardy William L. Lake 

John Blackstone James M. Martin 

Charley B. Matthews Henry Smith 

James Fagsley John Estill 

George W. McDaniel Joseph Byrnes 

William Brown Antonio Francisco 

Edward B. Davis Franc S. Wechser 

John French Philip O'Conner 

William Penton Alexander M. Snelly 
Joseph Reed. 

The total number comprising this list is forty-two (42,) one of whom 
is confined to the hospital by sickness. 

ALCOY. 
Havana, July 10, 1850. 



No. 3. 



United States Steamer Vixen, 

Havana, July 11, 1850. 

Sir : I have to acknowledge the receipt of yours of this date, cover- 
ing translation of a communication which you have received from the 
Governor and Captain General of Cuba, informing you of the release 
of a part of the persons taken by Spanish vessels of war from Ameri- 
can vessels near the island of Contoy, and requesting you to designate 
some vessel of war to receive them. 

You will please, in reply to the Governor, to state you will be ready 
to receive them on board the Congress as early to-day as may suit his 
convenience. 

After these men shall have been thus received by you, you will 
cause them to be immediately transferred to the United States sloop 
Albany. Commander Randolph will be directed to receive them from 
you. 

With much respect, &c, 

C. MORRIS, U. S. Navy. 

Com. J. McKeever, 

U. S. Frigate Congress, Havana. 



No. 4. 



United States Steamer Vixen, 

Havana, July 11, 1850. 

Sir : Commodore McKeever will send on board the Albany, under 
your command, a number of the persons who were captured at Contoy 
in American vessels, and who have been this day released by the gov- 
ernor and authorities of Cuba. 

You will receive and provision these men, spirits excepted, and will 



378 CASE OF THE BLACK WARRIOR, ETC 

give them as comfortable accommodations as circumstances will per- 
mit, until otherwise directed. 

You will keep the Albany prepared to sail at the shortest notice. 
With much respect, your obedient servant, 

C. MORRIS. 
Commander V. M. Randolph, 

U. S. Sloop Albany, Havana. 



No. 5. 



United States Steamer Vixen, 

Havana, July 13, 1850. 

Sir : When the consul of the United States and my self were onboard 
the Albany yesterday, to see the persons who have recently been liber- 
ated by the authorities of this place, one of them, named A. B. Moore, 
stated to us that whilst he was under the control of the Spanish authori- 
ties, three hundred and ten dollars, a belt, and some clothing, were ta- 
ken from him ; and that on his release he received back only two hun- 
dred and twenty dollars, without his belt or clothing. 

Another of them, named W. J. Holland, stated that money to the 
amount of eight hundred and five dollars and fifty cents, and a belt, 
were thus taken, and only five hundred dollars were returned to him. 

Henry Stevens, another of the persons, stated that a passage ticket 
in his favor, stating, in substance, " This ticket entitles the bearer to 
one steerage passage to Chagres on the bark Georgiana," was taken 
from him and was not returned. 

Although these statements rest entirely on the simple assertion of the 
individuals interested, which is owing in part to their inability to make 
affidavits on oath at the office of the consul of the United States, I have 
deemed it proper to present them for your consideration. 

If it should be found that, from any cause, these articles have been 
overlooked, when the men were sent on board the frigate Congress, 
and can now be supplied, they may be sent to the office of the United 
States consul, to be forwarded for the parties interested. 

With much respect, I have the honor to be, your obedient servant, 

C.MORRIS, 
Commodore United Stales Navy. 

His Excellency the General of Marine, Havana. 



No. 6. 

[Translation.] 

Havana, July 14, 1850. 

Mr. Commodore : I have had the pleasure to receive your note of 
yesterday, in which you speak of what was said in your presence by 
three of the individuals who were detained at Contoy, and finally set at 
liberty by the tribunals. 



CASE OF THE BLACK WARRIOR, ETC 379 

Being desirous to gratify you, and to acquaint you with what has 
been ascertained relative to the matter in question, I have gathered from 
the fiscal officer that, when these men were arrested, an inventory was 
taken on board of the vessels, in order to collect such arms, papers 
and money as were to be found. As soon as this inventory was 
taken, the men under arrest were distributed on board different vessels, 
leaving all their luggage on board the Georgiana, and the money, with 
some watches that were found, were deposited in the charge of the 
steward of the steamer Pizarro. As soon as all the vessels and the 
men had been assembled at Havana, the latter were presented with the 
luggage that had come by the Georgiana, and each selected what he 
said belonged to him. With regard to the money, it was necessary, 
according to law, for each man to prove the amount he had brought 
with him, and that the same was his own private property, and not 
belonging to the expedition, nor to other individuals among those who 
had committed the crime of aggression. Notwithstanding that none of 
them produced the evidence aforementioned, the fiscal, taking into con- 
sideration that no particular account had been taken of what had been 
found upon the person of each individual, did the same with the 
money and the watches that had been collected at Contoy as he had 
done in regard to the luggage ; which is to say, he placed at the dispo- 
sal of all who were assembled the total amount of articles that had 
been collected, in order that they might divide it among themselves 
according to the claims, more or less just, that each might present. 
This was in fact done, and the accompanying copy of a document 
showing the legal action of the fiscal officer, which I enclose for your 
information, proves it. 

I have the honor to remain, with the greatest consideration, your 
obedient, faithful servant, 

W. K. Y. H., 

FR. NAMEN. 

Commodore Morris, of the United States. 



No. 7. 



We the undersigned, declare, in due form, that we have received the 
money and jewels, and clothing, and everything that belongs to us and 
was in our possession at the time we were detained by her Majesty's 
steamer Pizarro, at the island of Contoy ; and we further declare, also, 
that all the others that are in the same case are also satisfied with their 
properties. 

A. B. MOORE, 
W. PRESTON, 
W. J. HOLLAND, 
E. B. DAVIS, 
JOHN ESTILL, 
J. D. HOAG, 
HENRY STEVENS, 
JOHN FINCH. 
Havana, My 10, 1850. 



380 CASE OF THE BLACK WARRIOR, ETC. 

This is a true copy of the original which is in the process. 
In testimony thereof, I, the officer of the navy acting as judge in 
this case, have signed my name, in company with the interpreter. 

FRANCISCO MURIAS, 

Jucz de la Causa. 
Ramon de Anarti, 

Interpreter. 
Havana, July 13, 1850, 



No. 8. 



United States Steamer Vixen, 

Havana, July 12, 1850. 

Sir : You will proceed with all dispatch, in the United States sloop 
Albany, under your command, to the harbor of Pensacola, for the pur- 
pose of taking to that place the persons who were sent yesterday to 
the Albany from the Congress, and who have recently been liberated 
from confinement by the authorities of Cuba. 

It is desirable that these persons should remain on board the Albany 
until the directions from the government can be received in relation to 
them. 

If, on your arrival at Pensacola, you should not, on referring to the 
commandant of that yard and station, find directions from the Secretary 
of the Navy respecting them, you will immediately send an officer to 
Mobile, with a dispatch for the Secretary of the Navy, to be trans- 
mitted by telegraph, informing him of the number of persons liberated 
by the authorities of Cuba, which you have on board, and requesting 
his instructions in relation to them, and to the future movements of the 
Albany. 

Should you receive no instructions from the Secretary of the Navy 
respecting the future employment of the Albany, you will be governed 
by unexecuted instructions which you may have received from Commo- 
dore Parker, as the service hereby ordered is only intended to suspend 
his orders till this service shall have been performed. 

Respectfully, your obedient servant, 

■ * ' C. MORRIS, 

V. S. Navy. 

Com. V. M. Randolph, 

United States Sloop Albany, Havana. 



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